Opinion of the Justices

To His Excellency the Governor and the Honorable Council:

The undersigned justices of the supreme court submit the following answer to the question contained in your resolution submitted to this court on January 24, 1974. In accordance with the usual practice an opportunity was presented to any attorney, legislator, organization, interested party or member of the public to present typewritten memoranda on the question presented by the request on or before January 30, 1974. Laws 1973, ch. 110, effective July 7, 1973, amended RSA ch. 611 by substituting county commissioners for the Governor and Council as the officials authorized to nominate and appoint medical referees. The validity of the 1973 amendment is brought into question because our constitution, pt. II, art. 46, provides for the appointment of coroners by the Governor and Council. N.H. Const, pt. II, art. 46 reads in part as follows: “[Art.] 46. [Nomination and Appointment of Officers]. All judicial officers, the attorney-general, coroners, and all officers of the navy, and general and field officers of the militia, shall be nominated and appointed by the governor and council; ... .” (Emphasis added.)

Coroners are ancient officers of the common law. J. Sanborn, Justice and Sheriff 489 (1888). “The provincial act of 1718 (Prov. Laws, ed. 1771, c. 86 [p. 131]) relating to the power and duty of coroners in taking inquisitions of death, was declaratory of the common law.” State v. Gerry, 68 N.H. 495, 497, 38 A. 272, 273 (1896). Although the name and duties of coroners were supplanted by those of medical referees by Laws 1903, ch. 134, the duties remained substantially the same. G. Weinmann, A Compendium of the Statute Law of Coroners and Medical Examiners in the United States, Bulletin of the National Research Council, Number 38 (1931), at 227-28.

Warren B. Rudman, attorney general, filed a memorandum of law in favor of affirmative answer.

Inasmuch as medical referees are in legal effect coroners and coroners are constitutional officers required by the constitution to be appointed by the Governor and Council, Laws 1973, 110:1 providing for the appointment of medical referees by county commissioners is of no legal effect. “Judicial officers, the Attorney General, coroners and military officers must be appointed by the Governor and Council and no change can be made in that method of selection” (Opinion of the Justices, 102 N.H. 195, 197, 152 A.2d 878, 880 (1959)) in the absence of constitutional amendment.

Frank R. Kenison Laurence I. Duncan Edward J. Lampron William A. Grimes Robert F. Griffith

January 31, 1974.