Attorney-General v. Morin , 93 N.H. 40 ( 1943 )

In numerous decisions of comparatively recent date this Court has declared that the admonition of Article 37 of the Bill of Rights concerning the independence of the three essential powers of government must be strictly observed. Opinion of the Justices, 85 N.H. 562,566, 567; Opinion of the Justices, 86 N.H. 597, 601; Opinion of the Justices, 87 N.H. 492, 493; Ferretti v. Jackson, 88 N.H. 296, 299.

"Speaking broadly," judicial power is the power "to interpret laws and decide disputes." Opinion of the Justices, 85 N.H. 562, 567. It is so defined today and must have been so understood when the Constitution was adopted. Merrill v. Sherburne, 1 N.H. 199, 203; Opinion of the Justices,86 N.H. 596, 601, 602. Certainly the framers of that instrument, who in Article 4, Part II, set forth with extreme particularity the functions of the courts, could not have used the term in a loose and inaccurate sense.

Where words possess a "customary signification" a definition of them would be useless — "`powers judicial,' `judiciary powers,' and `judicatories' are all phrases used in the constitution: and though not particularly defined, are still so used to designate with clearness, that department of government, which it was intended should interpret and administer the laws." Woodbury, J., in Merrill v. Sherburne, supra.

Lord Bacon's classification of ambiguities as latent and patent has been characterized as "an unprofitable subtlety." Thayer, Preliminary Treatise on Evidence, 424. While language is usually to be interpreted in the light of the circumstances surrounding its utterance, such circumstances cannot be shown for the purpose of contradicting the plain meaning of the language used: "the line of exclusion depends on how far the words will stretch, and how alien is the intent they are asked to include." Learned Hand, J., in Eustis Mining Co. v. Beer, 239 Fed. Rep. 976, 985. To extend the words "judicial power" to include the alien duty of appointing and supervising an official who "shall have all the powers and duties of the county commissioners of Coos county" (Laws 1943, c. 117, s. 3) is to stretch the words to the breaking point.

"Whether we are considering an agreement between parties, a statute or a constitution, with a view to its interpretation, the thing which we are to seek is, the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If thus regarded the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare, is the meaning of the instrument; and neither courts nor legislatures have a right to add to or take away from that meaning. This is true of every instrument, but when we are speaking of the most solemn and deliberate of all human writings, those which ordain the fundamental law of states, the rule rises to a very high degree of significance. It must be very plain, nay, absolutely certain, that the people did not intend what the language they have employed, in its natural signification, imports, before a court will feel itself at liberty to depart from the plain reading of a constitutional provision." Newell v. People, 7 N.Y. 9, 97, cited with approval in Cooley's Constitutional Limitations (7th ed.) 91, and in George v. Concord,45 N.H. 434, 440.

Since the term "judicial power" is not ambiguous, no resort may be had to "extrinsic evidence of the intent of those who used it." Franklin Street Society v. Manchester, 60 N.H. 342, 349. In the case of Jones v. Bennett,78 N.H. 224, 231, cited in the majority opinion, it is stated that "such evidence is admissible as a matter of necessity to prevent a finding of indefiniteness and a consequent failure to give any effect to the language" employed, but that "when no ambiguity exists as to the sense in which" the language is used, "proof by extraneous evidence" that it is used "in a peculiar or unusual sense, would be to contradict and defeat" the expressed intent.

This being the correct rule, it follows that neither pre-constitutional usage nor post-constitutional enactments can be invoked to prove that the framers of the Constitution considered the supervision of county affairs to be a judicial duty. To attach significance to the pre-constitutional practice of delegating executive powers to the judiciary is to disregard the constitutional purpose of abolishing these practices, and to assign importance to post-constitutional legislation is to ignore the discussions in the cases of State v. Company, 60 N.H. 219, 246, 247, and Eyers Woolen Co. v. Gilsum, 84 N.H. 1, 18, 19.

The fact that these early enactments have never been assailed does not tend to establish their validity. In State v. Company, supra, Judge Doe, citing Pierce v. State, 13 N.H. 536, 557, 558, has said that we cannot look with confidence "to the period immediately succeeding the Revolution for judicial precedents," that the people, "few in number, recovering laboriously from the effects of the war, concerned themselves with practical results," that they had "little leisure for seeking grievances in mere formal defects of their own legislation," that they were "largely controlled in their views of public affairs by their pre-constitutional usages" and "were satisfied with customary modes" that "did not appear to them substantially inequitable." In Eyers Woolen Co. v. Gilsum, supra, Judge Peaslee has declared that the legislation of this period as a whole "reveals what today seems to be an amazing disregard of the plainest principles."

That the term "judicial power" meant the same to the framers of the Constitution as it means to us today is, as already suggested, definitely shown by Article 4, Part II, of that instrument, which provides that the Legislature shall have authority to establish courts of record "for the hearing, trying, and determining, all manner of crimes, offenses, pleas, processes, plaints, actions, causes, matters and things whatsoever, arising or happening within this state, or between or concerning persons inhabiting or residing, or brought within the same, whether the same be criminal or civil, or whether the crimes be capital, or not capital, and whether the said pleas be real, personal, or mixed; and for the awarding and issuing execution thereon." The phrase "matters and things whatsoever" has reference of course to matters and things of the same general character as those specifically enumerated. Davis v. Company, 88 N.H. 204, 209, and cases cited.

It is significant that these enumerated duties do not include expressly or by reasonable implication any such duties as those which the Superior Court is directed by Laws 1943, c. 117, to assume.

It is true of course that the three essential powers of government cannot be completely separated. "In the nature of things there must be some overlapping." Opinion of the Justices, 85 N.H. 562, 567. And just as executive officers may be vested with some judicial power in order to accomplish properly the purpose for which their offices have been created (Opinion of the Justices, 87 N.H. 492, 493), so may judges be vested with some administrative power if, but only if, that power is needed to enable them to perform their judicial duties. Opinion of the Justices,85 N.H. 562, 567, 568. There is nothing in the fiscal agent act to warrant the assumption that the County of Coos is in so desperate a plight that the Superior Court must intervene in order to preserve property essential to the efficient administration of justice. No judicial duty is required of the Court by the act. Appointment of a fiscal agent and supervision of his activities are purely administrative tasks, and these tasks, as plaintiffs' counsel so clearly point out, render no conceivable aid to any judicial function.

Nor is the situation the equivalent of a receivership. "A receiver is an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the Court that either party should hold it." High, Receivers (4th ed.), s. 1. The necessity for a receivership and the extent of its duration are matters for the determination of the Court. Ib., ss. 7, 820; Eastman v. Bank, 58 N.H. 421, 422. The act in question gives the Court no choice in these matters. It directs the Court to appoint the agent. The provisions of the act are to be effective for two years. At the end of the first year the voters of the county are to express their approval or disapproval "of having the legislature extend the provisions of the law," and "the result of the voting on said question" is to be reported to the Legislature of 1945.

In my opinion chapter 117 of the Laws of 1943 is unconstitutional.

JOHNSTON, J., concurred in the foregoing opinion.