Opinion of the Justices , 112 N.H. 42 ( 1972 )

To the House of Representatives'.

The undersigned justices of the supreme court give the following answers to the questions contained in your resolution of February 23, 1972 and filed here the next day.

House bill 52 which is the subject of your inquiry would authorize the city of Dover through its industrial park authority to acquire, develop and operate industrial parks, construct, lease and sell industrial facilities and aid in the construction and expansion of industrial facilities in much the same way as the State authority has been authorized to do under RSA ch. 162-A(supp.), RSA ch. 162-D(supp.), and RSA ch. 162-E(supp.).

The declaration of need and purpose of the bill is essentially the same as that contained in RSA ch. 162-E:l(supp.). The bill provides that the authority shall not embark upon any of the projects authorized in the bill unless the city council after notice and hearing shall have made essentially the findings which the Governor and Council must make under RSA ch. 162-D:5(supp.) and RSA ch. 162-E:7(supp.) before the State authority may act. Your first question is whether the findings required by sections 5 and 14 of the bill may be made by the city council of Dover instead of a State agency or by State officials. Our answer to this question is “Yes”. If the findings are made by a responsible body on proper documentation and information as provided by the bill it matters not whether that body is municipal rather than State.

Questions 2, 3, 4 and 5 inquire whether certain provisions of the bill would be unconstitutional on the ground that they would authorize the expenditure of public funds for other than a public purpose, or give money or credit for the benefit of any corporation having for its object a dividend of profit. The answer to these four questions is “No”.

We have already given our opinion that RSA ch. 162-D(supp.), and RSA ch. 162-E(supp.) are constitutional. Opinion of the Justices, 111 N.H. 199, 278 A.2d 357 (1971). The reasons there referred to are equally applicable to the proposed legislation here under consideration and we respectfully refer to that opinion and cases cited therein.

We emphasize however the importance of valid findings by the city council under sections 5 and 14 of the bill that the project will serve a public purpose and not be primarily for the benefit of private persons or uses and is within the policy of and the authority conferred by the proposed act. Opinion of the justices, 106 N.H. 180, 207 A.2d 574 (1965); Opinion of the justices, 106 N.H. 237, 209 A.2d 474 (1965).

In question number 6 you ask if the proposed act is a law changing the charter or form of government of the city of Dover. Our answer is “No”. New Hampshire constitution part I, article 39, provides that “No law changing the charter or form of government of a particular city or town shall be enacted by the legislature except to become effective upon the approval of the voters of such city or town upon a referendum to be provided for in said law”.

Although the bill applies to the city of Dover and is not a “general law” applicable to other municipalities (Opinion of the Justices, 109 N.H. 396, 254 A.2d 273 (1969)), it nevertheless does not purport to “change the charter or form of government” of that city. It would simply permit the city, under its existing charter and form of government, to do the things allowed by the bill. We are of the opinion that New Hampshire constitution part I, article 39, was intended to prevent the form of government as provided by a charter from being altered by the legislature without a referendum of the people affected, and not to prevent the legislature from conferring additional powers upon a particular city to be exercised under its existing form of government. See Report of the Fifteenth Constitutional Convention Committee to Study the State Constitution 24; Voter’s Guide to Proposed Amendments to the Constitution, November 8, 1966, Election Question 3.

The seventh question asks if the proposed legislation is otherwise constitutional on its face. As we have stated on prior occasions we “cannot predict every issue” that may be raised in an adversary setting if this bill should become law. Our answer to your question is “Yes”. See Opinion of the Justices, 111 N.H. 199, 205, 278 A.2d 357, 361 (1971).

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