Opinion of the Justices , 102 N.H. 565 ( 1960 )

To His Excellency the Governor and the Honorable Council:

The undersigned Justices of the Supreme Court submit the following answer to the inquiry contained in your resolution filed July 5, 1960, pertaining to the use of the emergency fund for the preparation, printing and distribution of a voters’ guide explaining the constitutional amendments to be submitted to the people at the election in November, 1960.

The Constitutional Convention provided for in 1955 (Laws 1955, c. 42; Const. Pt. II, Art. 99), at its reconvened session in December 1959, which followed adjournment of the 1959 session of the Legislature, adopted four proposed amendments to be submitted to the voters in the November 1960 election. The first one would limit the payment of mileage to be paid the members of the Legislature. The second proposed amendment would enable the Legislature to provide for continuity of state and local government in case of enemy attack. The third relates to jury trials in civil matters, and the fourth would empower the Legislature to make suitable census adjustment in legislative apportionment on account of nonresidents temporarily residing within the state. The Constitutional Convention also authorized the preparation, printing and distribution of a pamphlet explaining to the voters the nature and effect of the proposed amendments. Such a pamphlet, entitled a “Voters’ Guide” had been prepared and distributed to the voters in connection with the proposed constitutional amendments submitted to the people in the November elections of 1956 and 1958. See Concrete Co. v. Rheaume Builders, 101 N. H. 59, 60.

The question whether or to what extent the Constitutional Convention is completely subordinate to or independent of the Legislature in its power to incur an indebtedness for convention purposes binding on the State is a matter of some difficulty which has not been entirely resolved in a categorical manner. White, Amendment and Revision of State Constitutions, 100 U. of Pa. L. Rev., 1132, 1146-1147 (1952); Dodd, The Revision and Amendment of State Constitutions, pp. 55, 72 (1910); Hoar, Constitutional Conventions, Their Nature, Powers and Limitations, c. 11 (1917). Thus, in Opinion of the Justices, 76 N. H. 612, 613, it was stated that the Constitutional Convention had “no enacting capacity, unless an incidental one of narrow range is implied as necessary for the business of preparing questions of revision and submitting them to- the people.” (Emphasis supplied). However we are not called upon in this opinion to settle that issue since the precise question before us is whether or not the Governor and Council has the power to appropriate from the emergency fund (RSA 4:18) the sum of $2,500 for the preparation, printing and distribution of a voters’ guide in connection with the proposed constitutional amendments to be submitted to the voters in the November 1960 election.

The desirability of an informed electorate in passing on changes in the fundamental law of the Constitution is disputed by no one and the practice of informing the voters of the nature of constitutional amendments has been given high priority in judicial decisions. See State ex rel News Corp. v. Smith, 353 Mo. 845. It was impliedly recognized by the Legislature in the act providing for this Constitutional Convention which authorized the Convention to provide for the method of submission of amendments agreed . to by its members and to “do any and all other things necessary to carry out the purposes of the convention.” Laws 1955, c. 42, s. 7. The use of the emergency fund in aid of the work of Constitutional Conventions has at least received administrative approval in this state. Journal of N. H. Constitutional Convention (May 15, 1956) 113-114.

Publication of a “Voters’ Guide” is a reasonable incident of submission of the proposed amendments to the voters as one of the “essential functions of state government.” RSA 4:18. If the guide is to be of practical use in connection with submission in November 1960, its preparation and distribution must be provided for before the next session of the Legislature. The need for such a provision could not be definitely determined at the last session which adjourned before the proposed amendments were considered by the reconvened Convention.

J. Walker Wiggin, amicus curiae, for affirmative answers. Louis C. Wyman, Attorney General and George T. Bay, Assistant Attorney General, for negative answers.

While the present circumstances calling for immediate action do not constitute an emergency in the sense of a state-wide disaster or an unforeseen cataclysmic event, the proposed expenditure is of sufficient importance and urgency at the present time to warrant the Governor and Council in using the emergency fund for that purpose. See Opinion of the Justices, 93 N. H. 478.

Frank R. Kenison. Laurence I. Duncan. Amos N. Blandin, Jr. Edward J. Lampron. Stephen M. Wheeler.

July 19, 1960.