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Opinion of the Justices

Supreme Court of New Hampshire
Mar 16, 1950
96 N.H. 517 (N.H. 1950)


No. 3925.

Decided March 16, 1950.

Where the request of the Governor and Council seeking the opinion of the Justices relates to action awaiting the consideration of that body in the course of its executive duty the inquiry may properly be answered. Laws 1949, c. 43, authorizing the Governor to examine the organization of the agencies of the State government to determine what changes are necessary and to prepare and transmit reorganization plans in the form of a statute to the General Court on or before a fixed date accompanied by a declaration of his findings confers no authority upon the Governor to take action having the force of law and involves no delegation of legislative authority. The further provision that the reorganization shall become law (1) upon the expiration of twenty-five legislative days following the date of transmittal but only if during that period there has not been passed by both houses a concurrent resolution indicating disfavor of such plan or (2) upon the earlier adjournment of the General Court or its prorogation sine die reserves to the General Court itself the power to determine whether the plans submitted shall or shall not become law. However, such a method of procedure for the enactment of laws conflicts with the Constitution, Pt. II, Arts. 2, 5, 24, 44, 45 and is unconstitutional. Legislative procedure by which plans prepared by the Governor are to be introduced may be varied by that body in regular or special session provided the action ultimately taken in the enactment of such plans conforms to the constitutional requirements.

Perkins Bass and Richard F. Upton (by brief and orally), for the constitutionality of the reorganization act (Laws 1949, c. 43).

Stanley M. Brown (by brief and orally), opposed.

Robert P. Bingham (orally), opposed.

Charles A. Holden (by brief and orally), also opposed.

On February 28, 1950, the Governor and Council adopted the following resolution:

"Whereas certain questions have been raised concerning the constitutionality of Chapter 43, Laws of 1949, entitled 'An Act to Provide for a Reorganization Plan for the Departments and Agencies of the State Government'; and

"Whereas it is necessary that such questions be resolved in order that the Governor may determine whether to transmit to the General Court with his approval certain reorganization plans proposed thereunder and whether to call the General Court into special session for such purpose prior to July 30, 1950, being the date of expiration of said act:

"Resolved by the Governor and Council assembled in executive session that the opinion of the Justices of the Supreme Court be respectfully requested upon the following important question of constitutional law:

"Does said act or any provision thereof conflict with the Constitution of the State of New Hampshire?"

The following answer was returned:

To His Excellency the Governor and the Honorable Council:

The undersigned Justices of the Supreme Court make the following answer to the inquiry contained in your resolution filed February 28, 1950, with respect to chapter 43, Laws of 1949: "Does said act or any provision thereof conflict with the Constitution of the State of New Hampshire?" In our opinion sections 4, 5, 8 and 10 of the act conflict with the Constitution.

The act in question provides for the preparation and transmittal of certain reorganization plans to the houses of the General Court under authority which expires July 30, 1950. The session of the Legislature at which the act was adopted has been adjourned in accordance with custom to the last Wednesday in December, 1950, at which time it is required to dissolve. Const., Pt. II, Art. 3. Under Article 50, Part II of the Constitution "the governor, with advice of council," is authorized to call the General Court together "sooner than the time to which it may be adjourned or prorogued, if the welfare of the state should require the same." In view of the time limitation established by the act to which the inquiry relates, the question of its constitutionality may be thought to be pertinent to a decision as to whether the General Court should be called together before July 30, 1950. This inquiry is thus related to action awaiting the consideration of the inquiring body in the course of its executive duty, and may properly be answered. Const., Pt. II, Art. 74.

In our opinion chapter 43, Laws 1949, is in conflict with the Constitution in certain respects hereinafter indicated. It is entitled "An Act to Provide for a Reorganization Plan for the Departments and Agencies of the State Government." It purports however to go beyond the purpose indicated by the title and to provide not only for a plan of reorganization, but for reorganization as well. The expression of views by both proponents and opponents of the act has been of material assistance to the Justices. To a considerable extent these views have related to the question of the constitutionality of an assumed delegation of legislative power to the executive, although the view that no authority of a legislative character is delegated by the act has not gone unnoticed. We accordingly first advert to the issue of whether the act does or does not delegate to the Governor authority to legislate. In our opinion it does not.

The first section of the act, in stating its purposes, declares that the public interest requires with respect to all agencies of State government, as later defined in the act (s. 6), that expenditures shall be reduced and economy promoted "to the fullest extent consistent with the efficient operation of the state government" and that the efficiency of the government be increased "to the fullest extent practicable within the revenues available to the state." The act further states that the public interest requires this to be done by coordination and consolidation of agencies and functions as nearly as possible according to major purposes, and by abolition of unnecessary agencies or functions. It declares that these purposes may be accomplished "more speedily and effectively" under the act than "by the enactment of specific, individual pieces of legislation covering each agency affected." It provides: "The governor is authorized to commence forthwith an examination of the organization of all agencies of the state government and to determine what changes are necessary therein" to accomplish the purposes stated (s. 1).

By section 2 the Governor is directed, whenever he finds it necessary in order to accomplish the stated purposes that any one of five specified types of organizational changes should be made, to "prepare one or more reorganization plans . . . and transmit such plan or plans to the general court." The plans are to be accompanied by a declaration of his findings. Section 3 contains provisions specifying particular types of changes which the Governor is authorized to propose as he deems necessary.

By section 9 of the act, as amended by chapter 86, Laws 1949, provision is made for a commission to cooperate with and advise the Governor in the preparation of plans. Each plan is to be "in the form of a statute" and to be transmitted to each house of the Legislature at the session at which the act was adopted, at an adjournment thereof, or at a special session (s. 2). The authority vested in the Governor and the commission expires on July 30, 1950 (s. 11).

Section 4 provides the time and manner in which reorganizations specified in the plan or plans submitted by the Governor shall "take effect and become law." These provisions we shall presently consider in greater detail. If the plans first transmitted to the General Court do not become law the Governor is authorized to transmit an amended plan or part thereof which is thereafter to be "subject to the same provisions of this act the same as an original plan" (s. 5). Should such an amended plan fail to become law, so far as the act provides, the responsibilities of the Governor are terminated. No provision for further amended plans appears.

Plainly the procedure thus far outlined contains no delegation of legislative authority. The sections by which the powers and duties of the Governor are prescribed (ss. 1, 2, 3, 5) contain no authority to take action having the force of law. The authority granted is to make an examination of organization and to determine necessary changes (s. 1), but not to make them. Plans are to be prepared by the Governor and transmitted to both houses of the General Court at the same time. While each plan is to be "in the form of a statute," there is no suggestion that prior to transmittal any plan shall become a statute, or that repeal of any existing statute shall occur. The Governor is granted no power or authority "to make, ordain [or] establish" any "orders, laws, statutes, ordinances, directions [or] instructions." Const., Pt. II, Art. 5. In what is authorized to be done by the Governor and his advisory commission under sections 1, 2, 3, 5 and 9 we perceive no violation of the Constitution. Their function differs in no material respect from that of interim commissions appointed by the same Legislature. Laws 1949, cc. 325, 335, 339, 348, 349, 350. The performance of the duties imposed calls for no exercise of legislative power.

Section 4 of the act contains the provisions which specify the time and manner in which the "reorganizations specified in each plan shall take effect and become law." In this section the Governor is not mentioned, nor by it is he granted any authority. It is provided that the reorganizations shall become law (1) upon the expiration of the first period of twenty-five legislative days following transmittal of the plans to the General Court, "but only if" during the period specified "there has not been passed by the two houses a concurrent resolution stating in substance that the general court does not favor the reorganization plan"; or (2) upon the earlier adjournment of the General Court, or its prorogation sine die.

Thus the enactment of any reorganization plan or plans into law is made to depend not upon any act of the Governor, but on the contrary wholly upon the conduct of the Legislature, whether that conduct be action or inaction, during a period of twenty-five legislative days following the date of transmittal. We do not conceive that these provisions constitute a delegation of legislative authority to the Governor. Rather the authority is withheld entirely to the Legislature to determine whether the plans which he submits shall or shall not become law. They do not become law upon transmittal, nor by the lapse of time merely. Only the lapse of twenty-five "legislative" days, coupled with inaction on the part of the Legislature, or its adjournment during the period, is sufficient under the act to give to the plan or plans the character of law. When filed they are no more than proposals, even though in the form of statutes. They become statutes only as the character of statutes is imparted to them by the Legislature. That under one alternative this may be accomplished by inaction does not alter the truth of the proposition, since the Legislature has provided that it may be accomplished in that way. Regardless of how many plans or amended plans may be filed by the Governor, if they are disapproved by the Legislature no law is enacted, and there is no suggestion that the Legislature considered that exercise of the reserved authority of disapproval would constitute a repeal of any previously existing law promulgated by the Governor. Cf. R. L., c. 240, ss. 10-12; Laws 1949, c. 272, s. 2.

The question is thus presented whether the procedure for enactment provided by sections 4 and 10 of the act conflicts with the Constitution. We conclude that it does. The Constitution, Pt. II, Art. 2, provides: "The supreme legislative power, within this state, shall be vested in the senate and house of representatives, each of which shall have a negative on the other." Article 5 provides that "full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions . . . so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof . . . ."

Article 44 requires that every bill "which shall have passed both houses of the general court, shall, before it becomes a law, be presented to the governor"; and further that upon his disapproval it shall be reconsidered. "[I]f, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent . . . 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." The Article further provides the method of voting upon reconsideration, and for a record of the names of persons "voting for or against the bill." See also, Art. 24, Pt. II.

Similarly, Article 45 provides that "every resolve shall be presented to the governor" for approval, and that in the event of disapproval the procedure followed shall be that provided by Article 44 with respect to bills.

There can be no doubt that the traditional method of enacting laws by the passage of bills or resolutions calls for separate action by each house by a voting of its members "for or against" the bill or resolution. No precedent for any other method of adoption of measures affecting the State as a whole which could have been contemplated by Articles 44 and 45 of the Constitution has been called to our attention. We think it plain that the Constitution requires that "by settled and well-understood parliamentary law these two houses are to hold separate sessions for their deliberations, and the determination of the one upon a proposed law is to be submitted to the separate determination of the other." Cooley, Constitutional Limitations (7th ed.) 187.

The procedure which chapter 43, Laws 1949 provides is in distinct contrast to that contemplated by the Constitution. Consent is to be manifested by silence or adjournment, and disapproval by "concurrent resolution," which it is suggested would not be a "resolve" within the meaning of Article 45, requiring presentation to the Governor. Whether it would or not we need not decide, since the contemplated procedure violates the constitutional provisions requiring separate action by each house of the Legislature. Section 4 of the act would dispense with the "passage" of any measure, as that word is commonly used, and with the requirement of presentation to the Governor. In a sense the act provides for a reversal of the democratic processes required by the Constitution, for under it the Governor would propose the legislative action, rather than approve or disapprove action taken.

The provisions of section 4 constitute a patent violation of Article 2 in that only by the affirmative and concurrent action of both houses may enactment of the plans into law be prevented. Where one house approves, disapproval by the other is without effect. Each house has undertaken in advance to surrender to the other its constitutional authority to veto or refuse assent to action taken or approved by the other.

It has been suggested that the negative provided by the Constitution was open to exercise when the act was originally adopted; but any negative which might then have been exercised could not relate to any proposed reorganization, since no plan or plans for reorganization were then in existence.

Emphasis is placed by the proponents upon congressional acts containing similar if not identical provisions. See 47 Stat. 1517; 53 Stat. 561, 1423; 59 Stat. 613. The constitutionality of these and similar congressional enactments has not been determined by the United States Supreme Court. Furthermore the Federal Constitution contains no express requirement that each house of Congress shall have a negative on the other.

In our judgment sections 4, 5, 8 and 10 of chapter 43, Laws 1949, are unconstitutional. On the other hand, we see no constitutional objection to the remaining sections which appear to be separable. Rosenblum v. Griffin, 89 N.H. 314, 320; Woolf v. Fuller, 87 N.H. 64, 69. The provision by which plans prepared by the Governor are to be transmitted directly to each house (s. 2 (e)), rather than introduced as provided by legislative rules, need not be invalidated. Legislative procedure in this regard may be varied by that body, in regular or special session, so long as the action ultimately taken comes within the constitutional limitations.

The answer to your inquiry is that sections 4, 5, 8 and 10 of chapter 43, Laws 1949 conflict with the Constitution, but the remaining sections do not.


March 16, 1950.

To His Excellency the Governor and the Honorable Council:

In reply to the question, "Does said act or any provision thereof conflict with the Constitution of the State of New Hampshire?", in our opinion, the answer is "No." We, the undersigned Justices, are guided in the first instance by the opinion rendered in Musgrove v. Parker, 84 N.H. 550. "The constitutionality of an act passed by the coordinate branch of the government is to be presumed. It will not be declared to be invalid except upon unescapable grounds." Id., 551. This case involved the delegation of legislative power to the Fish and Game Department to restrict the taking of fish or game by regulation when the board should find that such action was "necessary to insure the preservation or perpetuation of any kind of fish, game or furbearing animals . . . ." Id., 552. So here, we feel obliged, if possible, to give effect to the clear expression of the will of the Legislature as stated in chapter 43, Laws 1949.

What the present statute plainly seeks to accomplish is delegation to the Governor of the power to reorganize the departments and agencies of the executive branch of the government for the purposes of promoting efficiency and economy in that branch. The purpose of the delegation of legislative power is stated; the standards that must be followed are prescribed; and various limitations upon the power granted are made.

As has already been seen, the delegation of subsidiary legislative power is nothing new. We list some of the authorities in New Hampshire for this procedure with a brief statement in parenthesis of the delegate and the objective to be accomplished. State v. Normand, 76 N.H. 541 (to the State Board of Health to make regulations "to secure greater cleanliness in food when exposed for sale"); Grafton c. Company v. State, 77 N.H. 539 (the Public Service Commission was to be guided by "what is for the public good"); Conway v. Water Resources Board, 89 N.H. 346 (the Water Resources Board could determine what projects "the State construct" for the conservation of water resources; State v. Langley, 92 N.H. 136 (to the Commissioner of Motor Vehicles the power to determine "a speed limit which is reasonable and safe" outside certain districts); St. Regis Company v. Board, 92 N.H. 164 (to the Water Resources Board "to use and control all public waters of the state" to the extent necessary to construct a conservation project); Meredith v. State, 94 N.H. 123 (to the State Board of Health to direct that a town install "a suitable public system of sewerage"); Opinion of the Justices, 94 N.H. 510 (to a board of investigation to determine whether bond issues in excess of fixed debt limits are "in the best interest of and within the financial capacity of" school districts); Opinion of the Justices, 94 N.H. 515 (to a state agency to determine "eligibility for state assistance of any housing project").

The same kind of delegation to the chief executive to reorganize that branch of the government in the furtherance of efficiency and economy that is granted in chapter 43, has been upheld in the federal courts. "The result [of power granted to the President in the furtherance of efficiency and economy] was to abolish a board whose existence was dependent upon the will of Congress and to delegate to the Department of Commerce the same powers and duties the board had possessed. This seems in accord with correct standards as to delegation of authority to act within proper limits prescribed by Congress." Isbrandtsen-Moller Company v. United States, 14 F. Supp. 407, 412. The conclusion reached in this case was approved in Swayne Holt v. United States, 18 F. Supp. 25.

What may and may not be delegated is distinguished in Ferretti v. Jackson, 88 N.H. 296, 299: "The constitution permits the legislature to empower the executive department to enact legislation of a subordinate nature to a general law to meet the necessities of government. 'The supreme legislative power' (Const., Pt. II, Art. 2) is vested in the legislature, but not the sole and exclusive power in respect to incidental and subsidiary legislation." On page 302 of the opinion, the court stated the need "of a declared policy and of a prescribed standard." In the recent case of American Power Company v. Securities Exchange Commission, 329 U.S. 90, 105, the court declares the constitutional requirements as follows: "Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel Congress to prescribe detailed rules; it then becomes constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority."

In determining the constitutionality of a legislative enactment, if there is doubt, it is proper to consider the need for the measure. "It is a constitution we are expounding . . . intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." M'Culloch v. Maryland, 4 Wheat. 316, 407, 415. "The Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable." Opp Cotton Mills v. Administrator, 312 U.S. 126, 145.

That there is need of some body other than the Legislature to deal with this broad and complex subject of reorganization of the executive part of the government that requires so much time, detailed work and expert knowledge and that involves so many diverse and conflicting interests, may well have prompted the enactment of the measure. The truth of this statement is attested by the Legislature itself in its assertion in the last paragraph of section 1 of the act: "The general court declares that the public interest requires the carrying out of the purposes specified in this section and that such purposes may be accomplished more speedily and effectively under this act than by the enactment of specific, individual pieces of legislation covering each agency affected." "However, past history demonstrates that the passage of such legislation [effecting structural changes] is unlikely. Apparently, better results are obtained, if, as in 1933, 1939, and 1945, the President is authorized by a reorganization act to accomplish the necessary changes. . . . In recent years there has been increased appreciation of the necessity for permitting Congress to designate another body to fill in the details of its legislative policy and the courts have found the standards in legislation involving delegation to be adequate . . . Indeed, it is questionable whether the courts today would even subject the standards in reorganization legislation to severe scrutiny. . . Where, as here, the Government is directing its action inward, toward its own structure and procedure, there is less need for clearly defined standards." Reorganization of the Executive Branch, 48 Col. L. Rev., 1221, 1222, 1223, 1224.

The tests for the delegation of subordinate legislative power such as we are now considering that were stated in the Ferretti case, are amply complied with in chapter 43. The purpose of the Legislature in making into law chapter 43 is evident from the title, the declaration of purposes in section 1, the last paragraph of said section quoted above and the other provisions of the act. As already briefly stated, its purpose was to delegate to the Governor the power to reorganize the departments and agencies of the executive arm of the government so as to accomplish greater economy and efficiency. There can be no misunderstanding as to the meaning of this purpose and none has become evident from the arguments. It is as definite as many of the purposes for which delegation has been upheld in the past. Those asserting the chapter to be invalid offer no suggestion as to how the purpose could be made more specific. It has been suggested that in certain similar federal laws, some of the federal departments were excepted from the application of the laws. Such a provision would mean simply that the power granted was to be exercised on a smaller scale. It would not make more definite or more concrete either the purpose or the standards prescribed.

The standards prescribed by the Legislature for effecting the purpose sought are set forth in section 1 of the act. They are as follows: (a) to promote economy consistent with efficiency; (b) to insure efficiency so far as revenues permit; (c) to group, coordinate and consolidate agencies and functions according to major purposes; (d) to reduce the number of agencies by regrouping and by abolishing those not needed; and (e) to eliminate overlapping and duplication of effort. No additional standard has been suggested by the opponents of the act that, in their opinion, is necessary to make it comply with the constitutional requirements. Those set forth are as definite as in any other act that has come to our attention and as the nature of the matter permits.

In addition to a declaration of the purpose of the power delegated and of the standards that must be met in its exercise, various definite and narrow limits or boundaries to the power given are provided for in the act.

The authority granted is not a continuous one but is for one reorganization and expires on July 30, 1950.

The Governor has no power whatsoever under the act to create entirely new agencies or functions without regard to those existing. He must deal with the existing framework of the executive department and the activities now authorized. His sole objective is to streamline that department and make it more effective for the money appropriated. This concept of the power of the Governor being limited to reorganization of the present departments and agencies through transfer, abolition, consolidation and coordination would seem to dispose of the criticism that the delegation tends to make the Governor autocratic. Moreover, in the future he will be granted such powers and only such as the Legislature may choose to give him. The elected representatives of the people will still determine what subsidiary legislation shall be delegated.

With respect to the powers and duties bestowed, the Governor is limited, as stated in section 2, to what "is necessary to accomplish one or more of the purposes of section 1." These purposes were briefly stated in our own words in the paragraph in which were discussed the standards prescribed. He cannot change the present departments and agencies except in furtherance of these purposes.

It should be noted that the Governor is not dealing, under this act, with private rights or personal liberties but merely with the structure and functions of that branch of the state government of which he is the head. "The authorities which the defendants cite upon the question of requisite standards in statutes are those involving action by the government in its sovereign capacity, that is, where it reaches out to deal with, direct, or regulate the conduct of the citizen; in some instances against the will of the citizen, and often in interference with the citizen's own property or contract rights . . . . There the law requires strict boundaries to be erected by the statute around the exercise of power by official or board to whom is surrendered so much of the Congressional power as is necessary to fill in the details of the statute enacted." United States v. General Petroleum Corporation, 73 F. Supp. 225, 250. That subordinate legislative power can be more readily delegated under these circumstances was recognized in Conway v. Water Resources Board, supra, 352: "Here the authority is not to enact laws. The regulatory control is of public resources. No direction and control over private enterprise is intended to be granted, and the functions of the Board are essentially executive with the area of operations clearly outlined." The power to abolish all or any part of any agency or function is not a veto upon any act of the Legislature in the past in establishing departments and agencies. It must be interpreted in the light of the purposes declared and the standards set up. An agency can be abolished only if its function has been transferred or otherwise substantially lost, so that practically the agency is useless. An entire function can be abolished only if it is a duplication of another so that it renders no real service to the public. It was not the intention of the Legislature that the Governor substitute his idea of what were desirable agencies and functions for that of the Legislature.

So, the power to provide for the appointment, term of office and compensation of the heads and assistant heads of agencies is limited to carrying out the purposes of the act. Such power exists only where action under the statute makes it reasonably necessary. It is not a general power but incidental and subordinate to the provisions of the act. It is made necessary because of the fact that the duties and responsibilities of the heads and assistant heads may be quite different under the reorganization. The power is similar to that exercised by the classification plan board under chapter 207, Laws 1945. See also, the power of the Governor under section 18, chapter 27 of the Revised Laws.

In submitting his plan to the Legislature the Governor must include findings indicating that the changes are necessary to accomplish one or more of the purposes of section 1. He has the cooperation and advice of a commission of nine qualified persons, at least five of whom shall be members of the Legislature. Laws 1949, c. 86.

The reorganization plan must be submitted to the Legislature and cannot become effective until the expiration of twenty-five legislative days and then only if there has not been passed by the two houses a concurrent resolution against it. The entire plan or one or more parts may be disapproved. It should not be necessary to state that this provision was not intended by the Legislature as an enactment into law of the proposed plan. It is merely one of the checks or restraints upon the exercise of the subordinate legislative power delegated to the Governor. Accordingly, Article 2 of Part Second of the Constitution has no application. The provision there contained that each house shall have a negative on the other relates to the supreme legislative power when used for the passage of statutes, as for instance, in the enactment of said chapter 43. It is clear that, although the two houses must concur, this provision of the statute should be effective against any abuse in the exercise of the power delegated. It is highly improbable that either house would fail to concur in disapproval of an abuse.

Furthermore, the Legislature has a practical check upon the reorganized executive in the matter of the appropriations for running the state departments that are made on a year to year basis. In appropriating or not appropriating money for a department or its subdivisions or for the carrying out of particular services, the Legislature has a fundamental control over any reorganization whether proposed or made. It probably is unnecessary to add that no vested rights accrue as a result of action taken under chapter 43. Anything done can be altered in any way or abolished by the usual statutory enactment.

The purpose of chapter 43 is clear; the standards prescribed are as definite as the nature of the purpose permits. Various limitations upon the power granted are made. The delegation made is within the constitutional requirements. It is limited to a plan or plans to take effect now and no power need be given in the future save such as the elected representatives of the people may choose. Our answer to the question asked is, "No."


March 16, 1950.

Summaries of

Opinion of the Justices

Supreme Court of New Hampshire
Mar 16, 1950
96 N.H. 517 (N.H. 1950)
Case details for

Opinion of the Justices

Case Details


Court:Supreme Court of New Hampshire

Date published: Mar 16, 1950


96 N.H. 517 (N.H. 1950)
83 A.2d 738

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