Opinion of the Justices , 110 N.H. 26 ( 1969 )

To his Excellency the Governor and the Honorable Council:

The undersigned, the Justices of the Supreme Court, submit the following answers to the questions contained in the foregoing resolution filed in this court on November 3, 1969.

Your questions both relate to advice which you have requested from the Attorney General as to the validity of an income tax imposed by the State of Maine on citizens of New Hampshire employed at the Portsmouth Navy Yard and which you state he has declined to give on the grounds that the legal issues involved are purely private. You state that the “economic impact of this income tax on such a large number of New Hampshire citizens is a matter of public importance, substantially affecting the welfare of this State” and ask whether you may require an opinion from the Attorney General under RSA 7:8 which requires him to advise state agents and officers in the performance of their official duties.

RSA 7:9 provides that: “The governor and council may, in any action or proceeding, wherever pending, represent to the attorney - general that he should appear to protect the interests of the state or of the people, and thereupon it shall be his duty to appear.”

Under the provisions of this section you are entitled to an opinion from the Attorney General to assist you in determining what action if any should be taken in the event that proceedings are or should be instituted. Such opinion would be within the scope of RSA 7:8, supra.

The Attorney General in his memorandum states that he has in fact advised you that the tax in question may validly be imposed on New Hampshire citizens. While the Attorney General has sole responsibility of formulating his legal opinion, any action which you may determine to take for the protection of “the interests of the state or of the people” will not be concluded by his opinion. RSA 7:9, supra. See Opinion of the Justices, 103 N. H. 508.

Richard F. Upton, amicus curiae, on behalf of the Governor and Council, for affirmative answers. George S. Pappagianis, Attorney General, for negative answers. Frank R. Kenison. Laurence I. Duncan. Edward J. Lampron. William A. Grimes. Robert F. Griffith.

December 4, 1969.