The New Hampshire State Constitution: A Reference Guide

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The New Hampshire State Constitution

Reference Guides to the State Constitution of the United States G. Alan Tarr, Series Editor This series includes a separate volume for each state constitution, analyzing its history and current status, providing a text of the constitution with a clause-by-clause commentary, a bibliography, a table of cases, and an index. A volume describing common themes and variations in state constitutional development and a final index volume to the preceding volumes are forthcoming. The following is a listing of those titles in the series that have been published to date: Alabama William H. Stewart Alaska Gerald A. McBeath Arizona John D. Leshy Arkansas Kay Collett Goss California Joseph R. Grodin, Calvin R. Massey, and Richard B. Cunningham Colorado Dale A. Oesterle and Richard B. Collins Connecticut Wesley W. Horton Delaware Randy J. Holland Florida Talbot D 'Alemberte Georgia Melvin B. Hill, Jr. Hawaii Anne Feder Lee Idaho Donald Crowley and Florence Heffron Indiana William P. McLauchlan Iowa Jack Stark Kansas Francis H. Heller Kentucky Robert M. Ireland Lousisiana Lee Hargrave Maine Marshall J. Tinkle Michigan Susan P. Fino Minnesota Mary Jane Morrison

Mississippi John W. Winkle III Montana Larry M. Elison and Fritz Snyder Nebraska Robert D. Miewald and Peter J. Longo Nevada Michael W. Bowers New Hampshire Susan E. Marshall New Jersey Robert F. Williams New Mexico Chuck Smith New York Peter J. Galie North Carolina John V. Orth North Dakota James E. Leahy Oklahoma Danny M. Adkison and Lisa McNair Porter Tennessee Lewis L. Laska Texas Janice C May Utah Jean Bickmore White Vermont William C Hill Washington Robert F. Utter and Hugh D. Spitzer West Virginia Robert M. Bastress Wisconsin Jack Stark Wyoming Robert B. Kreiter and Tim Newcomb

THE NEW HAMPSHIRE STATE CONSTITUTION A Reference Guide Susan E. Marshall Foreword by Richard A. Hesse

REFERENCE GUIDES TO THE STATE CONSTITUTIONS OF THE UNITED STATES, NUMBER 39 G. Alan Tarr, Series Editor

PMEGER

Westport,Connecticut

london

Library of Congress Cataloging-in-Publication Data Marshall, Susan E., 1944The New Hampshire state constitution : a reference guide / Susan E. Marshall ; foreword by Richard A. Hesse. p. cm.—(Reference guides to the state constitutions of the United States ; no. 39) Includes bibliographical references and index. ISBN 0-313-31143-9 (alk. paper) 1. Constitutions—New Hampshire. 2. Constitutional law—New Hampshire. I. New Hampshire. Constitution (1784) II. Title. III. Series. KFN16011784.A6 M37 2004 342.74202—dc22 2004042204 British Library Cataloguing in Publication Data is available. Copyright © 2004 by Susan E. Marshall All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2004042204 ISBN: 0-313-31143-9 First published in 2004 Praeger Publishers, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.praeger.com Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the National Information Standards Organization (Z39.48-1984). 10

9 8 7 6 5 4 3 2 11

Contents

SERIES FOREWORD by G. Alan Tarr

xiii

FOREWORD by Emeritus Professor of Law, Richard A. Hesse

xvii

ACKNOWLEDGMENTS

PART I: THE CONSTITUTIONAL HISTORY OF NEW HAMPSHIRE

xxi

1

Introduction and Overview

1

The Temporary Constitution of 1776

4

Dissent Develops against the 1776 Constitution

7

The World's First Modern Constitutional Convention

9

Adoption of the 1784 Permanent Constitution

10

The Revision of 1792

12

Over 80 Years of Constitutional Satisfaction

15

Important Changes Reshape State Government in 1877

17

Constitutional Conventions

17

Amendments to the Constitution, 1792-2002

18

Conclusion

27

Contents

VI

PART II: NEW HAMPSHIRE CONSTITUTION AND COMMENTARY

35

Introduction to Constitutional Commentary

35

New Hampshire Constitution: Part 1, the Bill of Rights

37

Article 1. Article 2. Article 2-a. Article 3.

Equality of Men; Origin and Object of Government Natural Rights The Bearing of Arms Society, Its Organization and Purposes

37 39 42 43

Article 4. Article 5. Article 6. Article 7. Article 8.

Rights of Conscience Unalienable Religious Freedom Recognized Morality and Piety State Sovereignty Accountability of Magistrates and Officers; Public's Right to Know

43 44 46 48 50


No Hereditary Office or Place Right of Revolution Elections and Elective Franchises Protection and Taxation Reciprocal Conscientious Objectors Not Compelled to Bear Arms

52 52 54 58 61

Article 14.

Legal Remedies to Be Free, Complete, and Prompt

61

Article 15.

Right of Accused

65

Article 16.

Former Jeopardy; Jury Trial in Capital Cases

74

Article 17.

Venue of Criminal Prosecutions

76

Article 18.

Penalties to Be Proportioned to Offenses; True Design of Punishment

78

Article 19.

Searches and Seizures Regulated

80

Article 20.

Jury Trial in Civil Causes

82

Article 21.

Jurors; Compensation

84

Article 22.

Free Speech; Liberty of the Press

85

Article 23.

Retrospective Laws Prohibited

87

Article 24.

Militia

90

Article 25.

Standing Armies

90

Contents

vii

Article 26.

Military Subject to Civil Power

90

Article 27.

Quartering of Soldiers

90

Article 28.

Taxes, by Whom Levied

91

Article 28-a.

Mandated Programs

91

Article 29.

Suspension of Laws by Legislature Only

93

Article 30.

Freedom of Speech

94

Article 31.

Meetings of Legislature, for What Purposes

95

Article 32.

Rights of Assembly, Instruction, and Petition

95

Article 33.

Excessive Bail, Fines, and Punishments Prohibited

97

Article 34.

Martial Law Limited

99

Article 35.

The Judiciary; Tenure of Office, etc.

100

Article 36.

Pensions

102

Article 36-a.

Use of Retirement Funds

104

Article 37.

Separation of Powers

105

Article 38.

Social Virtues Inculcated

107

Article 39.

Changes in Town and City Charters, Referendum Required

108

New Hampshire Constitution: Part 2, the Form of Government

113

Numbering of Articles in Part 2

113 113 114 115 116 118


Article 5-a. Article 5-b. Article 6. Article 6-a.

Name of Body Politic Legislature, How Constituted General Court, When to Meet and Dissolve Power of General Court to Establish Courts Power to Make Laws, Elect Officers, Define Their Powers and Duties, Impose Fines and Assess Taxes; Prohibited from Authorizing Towns to Aid Certain Corporations Continuity of Government in Case of Enemy Attack Power to Provide for Tax Valuations Based on Use Valuation and Taxation. Use of Certain Revenues Restricted to Highways

123 124 124 126

Contents

Vlll

Article 6-b. Article 7. Article 8. Article 9. Article 9-a. Article 10. Article 11. Article 11-a. Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 18. Article 18-a. Article 19. Article 20. Article 21. Article 22. Article 23. Article 24. Article 25. Article 26. Article 26-a. Article 27.

Use of Lottery Revenues Restricted to Educational Purposes Members of Legislature Not to Take Fees or Act as Counsel Open Sessions of Legislature Representatives Elected Every Second Year; Apportionment of Representatives Legislative Adjustments of Census with Reference to Non-Residents Representation of Small Towns (Repealed in 1889) Small Towns; Representation by Districts Division of Town, Ward or Place; Representative Districts Biennial Election of Representatives in November Qualifications of Electors (Repealed in 1976) Representatives, How Elected, Qualifications of Compensation of the Legislature Vacancies in House, How Filled House to Impeach Before the Senate Money Bills to Originate in House Budget Bills Adjournment Quorum, What Constitutes Privileges of Members of Legislature House to Elect Speaker and Officers, Settle Rules of Proceedings, and Punish Misconduct Senate and Executive Have Like Powers; Imprisonment Limited Journals and Laws to Be Published; Yeas and Nays; and Protests Senate, How Constituted Senatorial Districts, How Constituted Division of Town, Ward or Place; Senatorial Districts Election of Senators

128 128 129 129 131 132 132 134 134 135 135 136 138 138 139 139 141 141 142 142 144 144 146 146 147 148

ix

Contents

Article 28. Article 29. Article 30. Article 31. Article 32. Article 33. Article Article Article Article Article

34. 35. 36. 37. 38.

Article 39. Article 40. Article 41. Article 42.

Article 43.

Article 44. Article 45. Article 46. Article 47. Article 48. Article 49.

Senators, How and by Whom Chosen; Right of Suffrage (Repealed in 1976) Qualifications of Senators Inhabitant Defined Inhabitants of Unincorporated Places; Their Rights, etc. (Repealed in 1976) Biennial Meetings, How Warned, Governed, and Conducted; Return of Votes, etc. Secretary of State to Count Votes for Senators and Notify Persons Elected Vacancies in Senate, How Filled Senate, Judges of Their Own Elections Adjournment Senate to Elect Their Own Officers; Quorum Senate to Try Impeachments; Mode of Proceeding Judgment on Impeachment Limited Chief Justice to Preside on Impeachment of Governor Governor, Supreme Executive Magistrate Election of Governor, Return of Votes; Electors; If No Choice, Legislature to Elect One of Two Highest Candidates; Qualifications for Governor In Cases of Disagreement Governor to Adjourn or Prorogue Legislature; If Causes Exist, May Convene Them Elsewhere Veto to Bills Resolves to Be Treated Like Bills Nomination and Appointment of Officers Governor and Council Have Negative on Each Other Field Officers to Recommend, and Governor to Appoint, Company Officers (Repealed in 1976) President of Senate, etc., to Act as Governor When Office Vacant; Speaker of House to Act When Office of President of Senate Is also Vacant

148 148 149 150 150 151 152 153 154 155 156 157 157 158 159

160

161 164 164 166 166 167

Contents

X

Article 49-a.

Article 50. Article 51. Article 52. Article 53. Article 54. Article 55. Article 56. Article 57. Article 58. Article 59. Article 60. Article 61. Article 62. Article 63. Article 64. Article 65. Article 66. Article 67. Article 68. Article 69. Article 70. Article 71.

Article 72. Article 72-a.

Prolonged Failure to Qualily; Vacancy in Office of Governor Due to Physical or Mental Incapacity, etc. Governor to Prorogue or Adjourn Legislature, and Call Extra Sessions Powers and Duties of Governor as Commanderin-Chief Pardoning Power Militia Officers, Removal of (Repealed in 1976) Staff and Non-Commissioned Officers, by Whom Appointed (Repealed in 1976) Division of Militia into Brigades, Regiments, and Companies (Repealed in 1976) Disbursements from Treasury Accounts of Military Stores (Repealed in 1950) Compensation of Governor and Council Salaries of Judges Councilors; Mode of Election, etc. Vacancies, How Filled, if No Choice Subsequent Vacancies; Governor to Convene; Duties Impeachment of Councilors Secretary to Record Proceedings of Council Councilor Districts Provided For Elections by Legislature May Be Adjourned from Day to Day; Order Thereof Election of Secretary and Treasurer State Records, Where Kept; Duty of Secretary Deputy Secretary Secretary to Give Bond County Treasurers, Registers of Probate, County Attorneys, Sheriffs, and Registers of Deeds Elected Counties May Be Divided into Districts for Registering Deeds Supreme and Superior Courts

169

170 171 172 173 173 173 173 174 175 175 175 176 177 178 178 179 179 180 180 181 181 182

183 183

xi

Contents

Article 73.

Article Article Article Article Article Article Article Article Article

73-a. 74. 75. 76. 77. 78. 79. 80. 81.

Article 82. Article 83. Article 84. Article 85. Article 86. Article 87. Article 88. Article 89. Article 90. Article 91. Article 92. Article 93. Article 94. Article 95. Article 96. Article 97. Article 98. Article 99.

Tenure of Office to Be Expressed in Commissions; Judges to Hold Office During Good Behavior, etc.; Removal Supreme Court, Administration Judges to Give Opinions, When Justices of Peace Commissioned for Five Years Divorce and Probate Appeals, Where Tried Jurisdiction of Justices in Civil Causes Judges and Sheriffs, When Disqualified by Age Judges and Justices Not to Act as Counsel Jurisdiction and Term of Probate Courts Judges and Registers of Probate Not to Act as Counsel Clerks of Courts, by Whom Appointed Encouragement of Literature, etc.; Control of Corporations, Monopolies, etc. Oath of Civil Officers Before Whom Taken Form of Commissions Form of Writs Form of Indictments, etc. Suicides and Deodands Existing Laws Continued if Not Repugnant Habeas Corpus Enacting Style of Statutes Governor and Judges Prohibited from Holding Other Offices Incompatibility of Offices; Only Two Offices of Profit to Be Holden at Same Time Incompatibility of Certain Offices Bribery and Corruption Disqualify for Office Value of Money, How Computed (Repealed in 1950) Constitution, When to Take Effect Revision of Constitution Provided For (Repealed in 1980)

185

186 187 190 191 192 193 194 195 196 196 197 201 203 203 203 205 205 205 206 207 207 208 208 209 209 209 210

Contents

Xll

Article 100. Article 101.

Alternate Methods of Proposing Amendments. Enrollment of Constitution

211 214 217

TABLES AND APPENDICES

Table 1.

Constitutional Conventions in New Hampshire

217

Table 2.

Constitution Amendments Proposed for Ratification Grouped by Topic

218

Table 3.

Amendments to the Constitution, 1792-2002

222

Appendix 1.

Text of 1776 Constitution

224

Appendix 2.

Text of 1784 Constitution

227

BIBLIOGRAPHICAL ESSAY

247

TABLE OF CASES

253

INDEX

267

Series Foreword

In 1776, following the declaration of independence from England, the former colonies began to draft their own constitutions. Their handiwork attracted widespread interest, and draft constitutions circulated up and down the Atlantic seaboard, as constitution-makers sought to benefit from the insights of their counterparts in sister states. In Europe, the new constitutions found a ready audience seeking enlightenment from the American experiments in selfgovernment. Even the delegates to the Constitutional Convention of 1787, despite their reservations about the course of political developments in the states during the decade after independence, found much that was useful in the newly adopted constitutions. And when James Madison, fulfilling a pledge given during the ratification debates, drafted the federal Bill of Rights, he found his model in the famous Declaration of Rights of the Virginia Constitution. By the 1900s, however, few people would have looked to state constitutions for enlightenment. Instead, a familiar litany of complaints was heard whenever state constitutions were mentioned. State constitutions were too long and too detailed, combining basic principles with policy prescriptions and prohibitions that had no place in the fundamental law of a state. By including such provisions, it was argued, state constitutions deprived state governments of the flexibility they needed to respond effectively in changing circumstances. This— among other factors—encouraged political reformers to look to the federal government, which was not plagued by such constitutional constraints, thereby shifting the locus of political initiative away from the states. Meanwhile, civil libertarians concluded that state bills of rights, at least as interpreted by state courts, did not adequately protect rights and therefore looked to the federal courts and the federal Bill of Rights for redress. As power and responsibility shifted from the state to Washington, so too did the attention of scholars, the legal community, and the general public. During the early 1970s, however, state constitutions were "rediscovered." The immediate impetus for this rediscovery was former President Richard

XIV

Series Foreword

Nixon's appointment of Warren Burger to succeed Earl Warren as Chief Justice of the United States Supreme Court. To civil libertarians, this appointment seemed to signal a decisive shift in the Supreme Court's jurisprudence, because Burger was expected to lead the Court away from the liberal activism that had characterized the Warren Court. They therefore sought ways to safeguard the gains they had achieved for defendants, racial minorities, and the poor during Warren's tenure from erosion by the Burger Court. In particular, they began to look to state bills of rights to secure the rights of defendants and to support other civil-liberties claims that they advanced in state courts. The "new judicial federalism," as it came to be called, quite quickly advanced beyond its initial concern to evade the mandates of the Burger Court. Indeed, less than two decades after it originated, it became a nationwide phenomenon. For when judges and scholars turned their attention to state constitutions, they discovered an unsuspected richness. They found not only provisions that paralleled the federal Bill of Rights, but also constitutional guarantees of the right to privacy and of gender equality, for example, that had no analogue in the U.S. Constitution. Careful examination of the text and history of state guarantees revealed important differences between even those provisions that most resembled federal guarantees and their federal counterparts. Looking beyond state declarations of rights, jurists and scholars discovered affirmative constitutional mandates to state governments to address such important policy concerns as education and housing. Taken altogether, these discoveries underlined the importance for the legal community of developing a better understanding of state constitutions. Yet the renewed interest in state constitutions has not been limited to judges and lawyers. State constitutional reformers have renewed their efforts with notable success: since 1960, ten states have adopted new constitutions and several others have undertaken major constitutional revisions. These changes have usually resulted in more streamlined constitutions and more effective state governments. Also, in recent years political activists on both the left and the right have pursued their goals through state constitutional amendments, often enacted through the initiative process, under which policy proposals can be place directly on the ballot for voters to endorse or reject. Scholars too have begun to rediscover how state constitutional history can illuminate changes in political thought and practice, providing a basis for theories about the dynamics of political change in America. Susan E. Marshall's excellent study of the New Hampshire Constitution is the latest volume in the series, Reference Guides to the State Constitutions of the United States, which reflects this renewed interest in state constitutions and will contribute to our knowledge about them. Because the constitutional tradition of each state is distinctive, the volume begins with the history and development of the New Hampshire Constitution. It then provides the complete text of New Hampshire's current constitution, with each section accompanied by commentary that explains the provision and traces its origins and its interpretation by the courts and by other governmental bodies. The book also

Series Foreword

xv

contains tables with information about New Hampshire's constitutional conventions and amendments to the constitution, appendices of the texts of the 1776 constitution and the 1784 constitution as originally adopted, and a bibliographical essay with a selection of primary and secondary sources for the New Hampshire Constitution. Finally, the book concludes with a table of cases cited in the history and the constitutional commentary, as well as a subject index. G. Alan Tarr

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Foreword

Utter the word "constitution" to most politicians and lawyers and their minds will take them to the United States Constitution and all of its "baggage." That is hardly surprising since the bulk of formal education and scholarship in the United States has focused on the federal constitution. Happily things began to change in the early 1970s when the United States Supreme Court began to dismantle protections in the federal Bill of Rights established in prior U.S. Supreme Court decisions. The impression that individual rights under the federal constitution might, like the political tides, come and go caused lawyers and judges to focus on state constitutions as the source of protection of those rights. New Hampshire was among the early states to acknowledge the importance of the state constitution when its supreme court declared that it would treat the state constitution as the primary source of law, looking to the federal constitution for guidance or only when necessary to grant relief to the claimant. This powerful move created the need for a broader and deeper understanding of the state constitution. The New Hampshire Supreme Court sent clear signals to the state bar that it expected claims of violation of the state constitution to be well developed. At the same time, the court told bar examiners that it wanted assurance that applicants for admission to the state bar were prepared accordingly. Necessity is the mother of invention. The need for a broader and deeper understanding of the state constitution called for resources that were not readily available. There were no accessible, comprehensive materials explaining the state's constitution. Litigants and others seeking to understand the document had to fashion their own scholarship based on scattered judicial decisions and historical materials. The process was made more difficult because no basic materials were available as a starting point; certainly nothing existed to provide a comprehensive understanding of the development of the New Hampshire Constitution.

XV111

Foreword

The new-found focus on the New Hampshire Constitution was not an abstraction. Beginning in the 1980s the New Hampshire Supreme Court entertained claims under the state constitution and found limits on government powers not previously recognized. Those early cases demonstrated the utility of referring to the state constitution in framing judicial claims and arguments. But, again, the resources for use of the state constitution palled by comparison to those available for use of the federal constitution. This volume takes a substantial and valuable step toward meeting the needs of lawyers, politicians and scholars of the state constitution. It provides both a general history of the development of the constitution and a specific history of the development of each article. Thus the reader gains an invaluable starter set for understanding each article with references to cases and supplemental sources that will guide further study. Beginning at the beginning is not only logical but also extremely interesting. The little known and little appreciated history of the nation's first written constitution in New Hampshire in 1776 opens the saga. Even though brief (911 words in 15 sentences) and temporary, that document laid out a form of government dedicated to popular control and limited government powers. Those principles have remained a central theme of New Hampshire constitutional law throughout the development of the current version of our charter. The detail of the framing of the original state constitution—the first in the nation—provides a context for understanding and appreciating the traditions which have marked the state's political and constitutional history. On that cornerstone, this volume builds the structure which is our modern constitution. Season by season and brick by brick, we move through the development of the 1784 constitution and its major revision in 1792. Using the 16 constitutional conventions as our calendar, we move through the proposed and adopted amendments. Constitutional conventions are a significant part of New Hampshire's constitutional history; indeed, the world's first constitutional convention was held in Concord in 1778 with 74 delegates from 90 towns. The constitutional convention came to be regarded as so important that the New Hampshire Constitution requires that citizens be given the opportunity periodically to call such a convention. The work of each convention is discussed in its context taking into account the social and political issues of the day. Given the fact that 296 amendments have been proposed since the adoption of the 1784 constitution and the fact that the supreme court of the state, in seeking to determine the meaning of the 144 amendments that have been adopted, looks to the intention of the voters when approving an amendment, an understanding of the issues of the time of adoption of the amendments is critical. The materials provided in this volume allow for a study of the issues at the time of adoption of the amendments as well as the details of the interpretation given to the resulting articles in the constitution. A 1964 amendment to the constitution has reduced the emphasis on constitutional conventions; in that year the constitution was changed to permit

Foreword

xix

the legislature to submit proposed amendments to the constitution to the people directly without the necessity of a convention. Nonetheless, the people of the state must express their approval of constitutional changes by a supermajority. Regardless of whether an amendment reaches the people by way of a constitutional convention or a legislative proposal, the New Hampshire Supreme Court continues to interpret the amendments in light of the voters' understanding of that amendment. That said, the intention of the framers of an amendment, whether legislators or constitutional convention delegates, continues to be influential. The source material in this volume regarding the framers' intent is an important tool for those who seek to understand the meaning of the amendments. No claim is made that this volume is the definitive work on the New Hampshire Constitution. The importance of this work is two-fold: it gathers the historical and jurisprudential materials that will enable further research and analysis, and it provides an immediately useful tool to those who use the constitution in their day-to-day work. Thus, scholars and practitioners of the law can be grateful to the author for taking a necessary step toward improvement of our knowledge of the constitution and improvement of the government conducted pursuant to that constitution. Richard A. Hesse Emeritus Professor of Law


Acknowledgments

I am grateful to Greenwood Publishing Company for the opportunity to write the volume on the New Hampshire State Constitution in its series on state constitutions, and especially for the assistance and guidance provided by G. Alan Tarr, the series editor. I am deeply indebted to Jere R. Daniell, Professor of History at Dartmouth College, for his assistance relating to the constitutional history. His willingness to share his deep knowledge of New Hampshire history and his constructive critiques of numerous drafts of the history were an invaluable aid. I would like to extend my deep appreciation to Emeritus Professor of Law at Franklin Pierce Law Center, Richard A. Hesse, for generously providing his time and expertise on New Hampshire constitutional law, as well as writing the foreword to this volume. His comments and suggestions were extremely helpful to me at every stage in the process. I also owe thanks to Attorney Richard B. McNamara who made valuable comments and suggestions. I would like to acknowledge the assistance of the staffs at the New Hampshire State Library, the New Hampshire Law Library, and the New Hampshire Historical Society, who were always helpful. I owe a special thanks to state archivist Frank C. Mevers, whose particular expertise in the history of the state constitution was of great help. My husband, Douglas, was supportive of this project from its beginning and patient when its conclusion took somewhat longer than expected, and for that I am most grateful.


Parti The Constitutional History of New Hampshire

INTRODUCTION AND OVERVIEW New Hampshire has had two constitutions. The first was the temporary constitution of 1776, the first written constitution adopted in the original colonies,1 which predated the United States Declaration of Independence by six months. The second was the permanent constitution, which went into effect in 1784. The New Hampshire Constitution of 1784 is the second oldest permanent constitution in the United States, after the 1780 Massachusetts Constitution.2 It is the second shortest state constitution, after the constitution of Vermont.3 New Hampshire and Massachusetts were the only two colonies that submitted their constitutions to popular vote for approval.4 The first 15 years of statehood in New Hampshire, between 1776 and 1792, were years of considerable constitutional activity. The temporary constitution of 1776, New Hampshire's first venture into constitution making, was quickly drafted by New Hampshire's fifth provincial congress during the Revolutionary War. This "Form of Government" was designed to give New Hampshire a governmental structure to carry it through the war. This constitution was never submitted to the people for their approval but, for most of the state, did attain general acceptance.5 As the Revolution was coming to an end, the new state of New Hampshire struggled to establish a stable governmental system in the form of a permanent constitution. The first draft of a permanent constitution was produced by the world's first modern constitutional convention,6 held in Concord, New Hampshire, in 1778. This draft was rejected by the people, as were the first two drafts of the next constitutional convention elected in 1781. The 1781 convention's third draft was ratified by New Hampshire voters in 1783 and took effect in 1784, over five years before the federal constitution became effective.7 The text of the 1784 constitution was primarily based on the Massachusetts Constitution of 1780. In

2


1792, the 1784 constitution underwent major reshaping and improvement when the voters ratified a large number of amendments, 56 in all. After this period of early activity, there followed a long period of satisfaction with the basic governmental structure and the constitution that created it. When the constitutional convention of 1876 convened, the constitution had been unchanged for 84 years, except for a single amendment ratified in 1852. The eleven amendments adopted as a result of the 1876 convention made an important contribution to reshaping New Hampshire government into its modern form. Constitutional activity then slowed until the mid-1950s, with a total of 20 amendments adopted from 1889 to 1950. In only 30 years, from 1956 to 1986, there were 54 amendments to the New Hampshire Constitution, primarily for the purposes of modernizing the document, reflecting contemporary fiscal concerns, and bringing the constitution into harmony with the federal constitution. Two more amendments, in 1988 and 1990, bring the total to 144 amendments. At the beginning of the twenty-first century, the constitution still defines the same basic governmental structure created in 1784. The Bill of Rights, which forms Part 1 of the 1784 constitution, contains 23 articles which have not been changed since 1784, comprising over half of the articles in Part 1. The Bill of Rights in 1784 was very similar to the Bill of Rights of the Massachusetts Constitution of 1780, which, in turn, was largely based on the Virginia Declaration of Rights and the Pennsylvania Declaration of Rights, both from 1776.8 The New Hampshire Bill of Rights strongly protects individual rights and freedoms. Additions to the Bill of Rights in the two centuries after its adoption have included freedom of speech, the right to bear arms, protection against discrimination, the provision of counsel to indigent defendants, and the public right to know. Part 2 of the constitution sets forth the form of government. The basic components of Part 2 have been in the constitution since 1784, establishing the three branches of government—legislative, executive, and judicial. Provisions establishing certain state and county constitutional officers, such as the secretary of state and county treasurers, and limitations on plural office holding have also long been part of the constitution. The legislative branch consists of a house of representatives and a senate, which collectively are referred to as the "general court." The New Hampshire house has always been a large body, and there have been many amendments and proposed amendments to the articles which determine its size, basis of representation, and compensation. The maximum size of the house was set at 400 in 1942. The senate was increased in size from 12 to 24 in 1877, and attempts to increase its size beyond 24 have always met with failure. Compensation for members of the legislature was set in 1889 at $200 per biennium, plus mileage. The governor heads the executive branch and is responsible for the execution of the laws. The governor's powers in New Hampshire are more limited than in most other states. The governor must share power with a five-member executive

The Constitutional History of New Hampshire

3

council, elected from executive councilor districts. The executive council shares certain executive duties with the governor and must approve gubernatorial appointments. The governor has a general veto power over acts of the legislature, but no line item veto power. The governor, along with the members of legislature and the executive council, must run for reelection every two years. Since it became a state, New Hampshire has had a tradition of strong checks on the power of the chief executive. The first constitution had no provision at all for a chief executive. The constitution of 1784 made provision for a chief executive, called the "president," but this president was not fully independent from the legislative branch and had no veto powers. The chief executive's power was strengthened in the 1792 revision. In that revision, the president was renamed the "governor," the governor was given veto power over acts of the legislature, and gubernatorial succession was established. Over time, there have been minor clarifications of the governor's powers, but no major changes. The judicial branch started its history closely aligned with the legislative branch. Under the 1776 constitution, the legislature was responsible for appointing judges and could remove them at will. The legislature often appointed judges from its own members, who then continued to serve in both capacities. An independent judicial branch was constitutionally established in 1784. The constitution of 1784 prohibited plural office holding, specified that judges were to serve "so long as they behave well," and guaranteed that judges should receive "honorable salaries, ascertained and established by standing laws." Age limits were set for judges in 1792. The 1784 constitution did not specify courts with general trial and appellate jurisdiction, so the judicial branch was still subject to considerable control by the legislative and executive branches. During the nineteenth century, coinciding with changes in political power, the legislature abolished the existing courts and created new courts no fewer than six times. Each time, sitting judges were removed from office and new judges were appointed. The structure of the modern court system was established by statute in 1901, but the superior court and the supreme court were not given constitutional status and, thus, protection from restructuring at the will of the legislature until 1966. In 1978, the supreme court was given constitutional supervisory and rulemaking authority over the court system. The next-to-the-last article of Part 2 describes the methods for amending the constitution. The legislature could not propose amendments to the constitution until 1964. Until then, all amendments had to be proposed by members of an elected constitutional convention. It is not easy to amend the constitution. The amendment must first be proposed by a convention or the legislature by a 60 percent majority. Once an amendment has been proposed, New Hampshire's constitution requires that an amendment to the constitution must be ratified by a supermajority of two-thirds of the persons voting on the question, rather than a simple majority, as in many other states.

4


There are a number of miscellaneous provisions in Part 2, ranging from requirements relating to taxation to oath-taking for elected and appointed state officers to the guarantee of the right of habeas corpus. In the twentieth century, provisions have been added to both Part 1 and Part 2 that remove legislative discretion in matters deemed to require more binding limitations than those that could be provided by statute, including a prohibition on unfunded state mandates, restrictions on budget bill "footnotes" and the use of certain state revenues, and limitations on the contents of budget bills. Giving these provisions constitutional status prevents the legislature from suspending or repealing such a restriction during a time of fiscal crisis, as it could if the restriction were a statute and not in the constitution. The meaning of the constitution has been developed by court decisions that have interpreted the constitution over the years. The New Hampshire Supreme Court's earliest formally published decision dates back to 1816. THE TEMPORARY CONSTITUTION OF 1776 New Hampshire claims the distinction of being the first state to adopt a state constitution, even though this constitution was intended to be temporary and in effect only during the Revolutionary War. The disintegration of the royal government of the province of New Hampshire just before the beginning of the war led to the need for a new form of government, which was embodied in the temporary constitution. After its separation from Massachusetts Bay Colony in 1679,9 New Hampshire was ruled by a series of royally appointed chief executives.10 From 1686 to 1688, New Hampshire was part of the short-lived Dominion of New England, then briefly rejoined to Massachusetts, and finally separated again from Massachusetts in 1691 under the charter issued by King William and Queen Mary creating the province of Massachusetts Bay.11 The executive authority of royal governors was shared with an appointed council. The official legislative body of the province of New Hampshire was the assembly, chosen in elections called by the provincial governor.12 The last of the royal governors was Governor John Wentworth. Even though the system of representation for the provincial assembly favored towns that were sympathetic to the royal government, Governor Wentworth fought a losing battle in his attempt to maintain royal authority in the face of growing discontent and disorder. At the end of May in 1774 the assembly angered the governor by appointing a committee of correspondence to communicate with similar committees in other provinces. Governor Wentworth responded by dissolving the assembly in June 1774, but the following month it continued to meet illegally, first in the assembly hall and then in a tavern.13 In July the committee of correspondence issued a call to the towns to elect delegates to a provincial congress. The purposes of the first congress were to elect representatives to send to the Continental Congress and to coordinate resistance in towns. A series of provincial congresses met from July 1774 to


5

December 1775 and gradually assumed governmental authority as royal authority disintegrated.14 The first provincial congress met in Exeter on July 21, 1774. Meanwhile, Governor Wentworth struggled to maintain royal authority. He ordered new elections for the official assembly, but this assembly refused to seat three new members who had been elected under royal election writs without approval from the assembly.15 In an effort to delay any action by the assembly, Wentworth adjourned it in July 1775, and scheduled it to meet again on September 28. Wentworth issued this order from the Fort of William and Mary in New Castle, to which he had fled with his family about a month earlier to live under the protection of the Scarborough, a British warship. The situation for the governor was becoming increasingly desperate. When the Scarborough was forced to go to Boston in August for supplies, the Wentworth family went with it. This marked the end of royal government in New Hampshire, although Wentworth returned to New Hampshire soil one last time shortly before the assembly was due to meet again. The last act of the royal governor was taken from the Isles of Shoals on September 25, 1775, when Wentworth sent word to adjourn the assembly until the following spring. This action had no effect. As the royal government came to an end, there was no official government for New Hampshire. New Hampshire, unlike the other New England colonies, had no royal charter that could serve as a temporary basis for government.16 New Hampshire was governed by a series of royal commissions and instructions, which gave broad centralized authority to the governor appointed in England.17 Prompted by a concern for what might happen now that the royal court system no longer existed and by its own lack of official authority, the fourth of the provincial congresses sent a request for advice in October to the Continental Congress in Philadelphia. The Continental Congress responded on November 3, 1775, and recommended that New Hampshire call "a full and free representation of the people" which could, if necessary, "establish such a form of government, as . . . will best produce the happiness of the people . . . during the continuance of the present dispute between Great Britain and the Colonies."18 The fourth provincial congress provided that the next congress would be elected according to a new system of representation, based on a census sponsored by the congress that was more proportional to population than previous elections had been.19 The fifth congress consisted of 89 delegates from the 150 incorporated towns in the colony.20 The right to vote was expanded by the fourth provincial congress. Before the Revolution, the right to vote was very restricted. The election law of 1728 required all voters for representatives to the royal assembly to be possessed of real estate of £50 in value. The first four provincial congresses were elected by towns, presumably chosen by voters whom the selectmen judged as qualified to vote. The fourth provincial congress voted on November 14, 1775, to allow all taxpayers to vote, and this was the system used throughout the Revolution.21 On December 28, 1775, as authorized by its election precepts, the fifth provincial congress resolved itself into a house of representatives. It was this

6


newly formed house of representatives in Exeter that adopted the first constitution of the state of New Hampshire on January 5, 1776, some six months before the Declaration of Independence. Thus, the body that drafted New Hampshire's first constitution consisted of the same group of elected representatives as the fifth provincial congress and was New Hampshire's first house of representatives independent of royal rule. The people of New Hampshire never voted to accept this constitution; it was presented to them as a fait accompli by the body they had elected to set up a government.22 The 1776 constitution, or "Form of Civil Government" as it was called when it was adopted, was intended to be a temporary measure. However, complications of achieving agreement on a permanent constitution resulted in the "temporary" period lasting almost eight and one-half years. The brief constitution, only 911 words long, about one-third of which was a preamble, was adopted during a time of duress and emergency, and was meant to be in effect only "during the present unhappy and unnatural Contest with Great Britain."23 The governmental structure created by this constitution was based on the form of government in the province of Massachusetts, as established by the Charter of King William and Queen Mary of 1691, as it existed before the British Parliament enacted the Massachusetts Government Act in 1774.24 Part of the preamble of the 1776 constitution described the emergency situation: The Sudden & Abrupt Departure of his Excellency John Wentworth Esq: our Late Governor, & Several of the Council, Leaving us Destitute of Legislation,—and no Executive Courts being open to Punish Criminal Offenders; whereby the Lives & Propertys of the Honest People of this Colony, are Liable to the Machinations & Evil Designs of wicked men. This first constitution assumed there would be an eventual reunification with Great Britain, stating that "we Never Sought to throw off our Dependance [sic] upon Great Britain, but felt ourselves happy under her Protection . . . [W]e Shall Rejoice if Such a Reconciliation between us and our Parent State can be Effected." A commentator states that the final draft of this constitution was probably written by Meshech Weare, who had served on important committees in all five provincial congresses and was the president pro tern in two of the congresses.25 During the Revolution, Weare served simultaneously as chairman of the powerful committee of safety, chief justice of the superior court, which was then the highest state court, and the president of the council, the upper house of the legislature.26 The form of government created by this constitution had many drawbacks. Reflecting the deep distrust for the royal system and its governor, there was no provision for any executive. All power of government was concentrated in the legislature, which consisted of two houses, a house of representatives and a council. The first council was to be appointed by the house of representatives for one year, and subsequent councils were to be elected by county. The legislature had appointive power for most public officers and officers of the military, except court clerks, county treasurers, and recorders of deeds. The executive


7

function was carried out by the "committee of safety," a group of about a dozen men, created first by the provincial congress in 1775 and continued during the Revolution by the legislature.27 When the revolutionary legislature was not in session, which was most of the time, the committee of safety took over many governmental functions. This first constitution was drawn up under extraordinary circumstances. It lacked many of the elements that would be expected in a modem constitution. There was no bill of rights, no independent executive, no provision for an independent judiciary or separation of powers, and no method provided for the amendment of the constitution. There was also no provision describing on what basis representatives would be elected to the legislature. The system of representation used for the election of the fourth provincial congress remained in effect until the permanent constitution took effect in 1784. The temporary constitution served its purpose—it gave New Hampshire a frame of government to carry it through the war—but by the time it was finally replaced it had become an anachronism. By its terms, the 1776 constitution was to last until the end of the Revolutionary War, which ended when the peace treaty was signed in September of 1783 in Paris. In March of 1783, the voters of New Hampshire at their town meetings extended the temporary constitution for one more year, after three separate proposals for a constitution had been rejected and it was clear that there would not be time for a permanent constitution to be adopted before the end of the war. DISSENT DEVELOPS AGAINST THE 1776 CONSTITUTION Not all delegates at the fifth provincial congress approved of the adoption of the 1776 constitution, especially representatives from Portsmouth.28 Dissatisfaction with the temporary constitution continued to develop, especially in towns in two very dissimilar parts of the state. For different reasons, towns in the west near Hanover and towns in the east near Portsmouth led the movement to replace the 1776 constitution. The towns in the west in the upper Connecticut River valley were far from the seat of government in Exeter, and many of their citizens had close ties with Connecticut. The western towns were mostly small in size and felt that they were underrepresented in the legislature, so that the legislature did not represent their interests. Towns in the Piscataqua area around Portsmouth on the seacoast were dominated by merchants, whose economic fortunes had been severely affected by the Revolution. During the preRevolutionary period these merchants had exerted a strong influence over colonial politics and were able to protect their own economic and social interests, but the legislature during the Revolutionary period was controlled by representatives from interior towns who were not sympathetic to seacoast interests. The new constitution had been in effect for less than a week when a delegation of representatives from Portsmouth and a number of nearby towns presented a petition to the house of representatives on January 10, 1776. The

8


petitioners questioned the legitimacy of the new legislature because "our constituents never expected us to make a new form of government, but only to set the judicial and executive wheels in motion."29 As time went on, citizens of the Portsmouth area also objected to the lack of an independent executive and the proliferation of plural office holding resulting from appointments made by the assembly.30 In Hanover, site of the recently founded Dartmouth College, Dartmouth faculty members criticized the adoption of the 1776 constitution for two basic reasons: (1) the plan of apportionment for representation in the legislature was unfair, and (2) the people of the state had never voted their approval of this constitution. The widely circulated "Address from Grafton County,"31 probably written by Bezaleel Woodward,32 explained these objections. The address, dated July 31, 1776, attacked the apportionment plan because it did not allow at least one representative for each incorporated town. The then-current plan for representation required smaller towns to be combined to attain the minimum number of 100 freeholders required for a representative.33 This system, according to the western dissenters, did not recognize the sovereignty of the town corporation and treat all towns on an equal basis. When elections were held in 1776, Hanover and at least 13 other towns in the area showed their displeasure by boycotting the elections.34 The Grafton Address asserted that the Assembly was an illegal body35 and called upon the people of New Hampshire to exercise their "rights and privileges" by establishing a "supreme legislative court . . . to lay a foundation and plan of government."36 Woodward and others organized a group from town committees of safety in Grafton County called the United Committees. The United Committees met with Meshech Weare, the council president, and other council members in February of 1777, but no agreement was reached. To complicate the matter further, the councilors discovered that settlers in the area of the New Hampshire grants, just across the Connecticut River from the western towns, had organized themselves into what was then styled the state of New Connecticut, now Vermont.37 Many New Hampshire citizens in the western towns wanted to leave New Hampshire to become part of New Connecticut. In the fall, Woodward delivered a petition from the United Committees to an Assembly committee, recommending that a constitutional convention be called and that a new constitution be adopted that gave each town the option of electing at least one representative. The Assembly committee soon recommended that a convention be called, and, responding to the pressure to replace the temporary constitution, the New Hampshire legislature voted on February 26, 1778, to hold a full and free convention on the tenth day of June of that year "for the sole purpose of forming and laying a permanent plan or system of government for the future happiness and well-being of the good people of this state."38 However, by the time the legislature had called for the election of a convention, the western dissenters had decided that political separation served their interests better than a new constitution. While the rest of the state moved in


9

the direction of creating a new constitution, the western dissenters decided to join the new state in the New Hampshire grants, renamed Vermont, which had adopted a new constitution guaranteeing each town at least one representative. The crisis in the west continued until, in March of 1778, the United Committees petitioned the Vermont assembly for admission to Vermont. THE WORLD'S FIRST MODERN CONSTITUTIONAL CONVENTION The meeting of the convention in Concord, New Hampshire, in June of 1778 was a historic occasion.39 New Hampshire claims the distinction of being the first place in the world where a convention was elected and met for the sole purpose of drawing up a constitution, to be adopted when submitted to and approved by popular referendum. The convention of 1778 was the first true constitutional convention, that is, a convention of delegates elected solely for constitution making with its results to take effect only after ratification by the people.40 The idea of having an independent body, apart from the legislature, adopt a form of government was relatively new. It is hard to say if John Adams of Massachusetts, later to become the second president of the United States, was the source of the idea to have a specially called convention for the purpose of drafting a constitution. According to Adams in his Autobiography, he did express a similar idea in June of 1775, while addressing the Continental Congress during the discussion of a letter from the Massachusetts Bay Provincial Convention, and John Sullivan from New Hampshire approved of his idea. Adams, recalling these events in his autobiography, stated he was of the opinion that the people had to "be all consulted" regarding the formation of state government "to erect the whole building with their own hands, upon the broadest foundation. That this could be done only by conventions of representatives chosen by the people in the several colonies, in the most exact proportions. . . . Congress ought now to recommend to the people of every Colony to call such conventions immediately, and set up governments of their own, under their own authority; for the people were the source of all authority and original of all power. . . . Mr. John Sullivan of New Hampshire" was included in the "very small number" that heard "with apparent pleasure" of these "new, strange, and terrible doctrines."41 At the same time that the sentiment for the election of a special convention to draft a new constitution was gaining strength in New Hampshire, events in neighboring Massachusetts were moving in a similar direction. In the fall of 1776, the General Court of Massachusetts asked for the response of the towns to its offer to draft a constitution for Massachusetts. On October 22, 1776, Concord, Massachusetts, was the first town in Massachusetts to call for the election of a special convention to establish a constitution, recognizing the distinction between legislative powers and constitution making that had been delineated in the Address from Grafton County.42 Had the Massachusetts House of Representatives not rejected on March 27, 1777, the resolve of its own

10


committee that a specially called convention draft a new constitution, Massachusetts, instead of New Hampshire, might have been the site of the world's first true constitutional convention. It was not until June of 1779, however, that the Massachusetts General Court issued a call for the election of a state convention to draft a constitution. The convention in Massachusetts did not happen earlier because the Massachusetts General Court in June of 1777 decided to draft a constitution itself, which was rejected by the towns in Massachusetts in the spring of 1778.43 Most of the delegates to the convention in New Hampshire came from the seacoast area and the Merrimack Valley; the western and northern towns were poorly represented.44 Deep involvement in the secession movement kept many towns in Grafton and Cheshire counties from electing delegates. The fact that towns could elect as many delegates as they wished and had to pay their expenses favored the wealthier towns nearer to Concord. Even though the convention was attended by 74 delegates from about 90 towns,45 at least 55 towns were unrepresented.46 Some smaller towns were "classed" or grouped together and shared a representative. The constitutional convention elected in the spring of 1778 existed from 1778 to 1779, during which time it submitted one draft constitution which was rejected by a large margin by voters at town meetings. The proposal submitted by the convention to the voters on June 5, 1779, readopted many of the basic provisions of the 1776 constitution, so it did not respond to many of the criticisms made concerning the constitution then in effect. In addition, the draft required adoption by three-fourths of the voters, an unusually high approval requirement. The proposal closely resembled the 1776 constitution,47 which was not surprising because many of same men involved in drafting the 1776 constitution were delegates to the 1778 convention.48 In this draft constitution, power was still centered in the legislature, and there was a high wealth qualification for legislative membership, namely, £300, one-half of which had to be real estate. The council continued as the upper branch of government, with a "president" chosen by the council from among its members, who served in place of a governor but with almost no authority. There were substantial restrictions against legislators serving in other public capacities. Each town was allowed one seat in the house of representatives for each 100 families, while smaller places could join together for representation. ADOPTION OF THE 1784 PERMANENT CONSTITUTION After the rejection of the draft, the legislature did not act quickly to restart the constitutional process. The legislature was preoccupied with the ongoing war, the rebellion of the Connecticut valley towns and their attempted secession, the problems of inflation, and the demands of the Continental Congress for more men and supplies for the war. The crisis with the towns in the western part of the state continued to escalate between 1778 and 1781, until finally resolved in 1782. Between 1778 and 1782, towns in the west joined Vermont, withdrew


11

from Vermont, rejoined Vermont, and entertained the idea of forming a new state with towns in Vermont to the west of the Connecticut River, independent of both Vermont and New Hampshire.49 None of these schemes prevailed. The matter was finally settled when the Vermont assembly renounced jurisdiction over the towns in the valley east of the river in 1782, although rebellious Hanover did not send a representative to the New Hampshire Assembly until 1784.50 In the spring of 1781, the legislature authorized an election for another constitutional convention. Perhaps because it had learned from the rejection of the 1778 constitutional convention's draft constitution, the legislature this time authorized the convention which was to convene on the first Tuesday in June to stay in session until a constitution was adopted.51 This turned out to be a wise decision, because the first two proposals of this convention were rejected. Apparently, the meeting of the convention in June of 1781 was poorly attended, because the convention, when it reassembled in early 1782 after the rejection of its first constitutional draft, caused an advertisement to be published in the New-Hampshire Gazette of Portsmouth, New Hampshire, on March 2, 1782. The advertisement contained a notice urging towns that had not elected delegates to "neglect no longer" and towns that had already sent delegates to "add other members" if expedient. It was difficult to get the towns to actually send representatives to the convention. Travel was arduous, and towns were preoccupied with trying to recover from the hardships of wartime.52 The convention which met in June of 1781 followed the procedure of referring the matter of drafting a constitution to a committee and then reconvening at a later date to vote on the draft. This time, the drafters used the recently adopted 1780 Massachusetts Constitution, principally based on a draft by John Adams, as a model.53 As a member of the Massachusetts constitutional convention, he had drafted most of the articles adopted by the Massachusetts convention and, in 1776, was the driving force behind the federal Declaration of Independence.54 Many basic elements in today's New Hampshire Constitution came from that Massachusetts Constitution, namely, the Bill of Rights, the principle of separation of powers (although in a different version) and division of government into three branches, including an independent judiciary and a governor with broad veto powers. The draft presented to New Hampshire voters in 1781 represented a victory for the advocates of an independent executive branch. It proposed a governor with a limited veto power to be elected annually by the people, instead of a chief executive with little real power elected from the members of the council. A fivemember council, elected by joint ballot of the legislature, was to advise and consent to certain gubernatorial appointments. Judges, appointed by the governor and council, were to serve "during good behavior," and restrictions were put in place to prevent the holding of several important offices by the same person. The draft dealt with the issue of representation in the lower house of the legislature by limiting the house of representatives to 50 members, who were not directly elected by the eligible voters but were elected by county conventions

12


comprised of delegates from the towns. The margin required for adoption was reduced from the difficult-to-attain three-fourths of those present and voting to the two-thirds margin required today for the adoption of a constitutional amendment. When the draft was submitted to the towns, the towns were asked to "state their objections distinctly and the reasons therefor," if the draft was not approved by a majority of the voters.56 This draft, although similar in basic form to the constitution of today, was too controversial for the times in 1781. The draft was voted down, with objections centering around disapproval of the strong governor concept and the limits on house membership. Some opponents considered it to be an attempt to restore the seacoast merchant class to power.57 There is also evidence that there was inadequate public discussion about the draft before the vote.58 The convention reconvened in January 1782 to take up its task again. The second draft of the 1781 convention was submitted to the voters in August 1782. This draft contained several revisions in response to complaints from towns that had rejected the first draft, including the deletion of the indirect election of the members of the house, but retained a powerful executive branch. This second draft was also rejected in December of that year. Many towns again voiced their opposition to the strong governor concept.59 The convention convened again in June of 1783, after the voters at town meetings in March 1783 approved an extension until June 10, 1784, of the "temporary" constitution, when it appeared that peace would be achieved before a permanent constitution was adopted.60 The convention made significant changes to its earlier draft, responding to the objections from the towns. The position of governor was weakened and no provision was made for any veto power. Even the title of "governor" was changed to "president." Each town with 150 ratable polls (male inhabitants subject to taxation)61 could elect a member to the house. The draft also removed any limits on the size of the house, a decision which had far-reaching consequences into the second half of the twentieth century. Only male inhabitants aged 21 and over who paid for themselves a poll tax had the right to vote. This third draft of the convention of 1781 did receive the required two-thirds approval of the voters and took effect June 2, 1784. This was hardly too soon, as the one-year extension of the temporary constitution was about to expire. Thus, between 1779 and 1783, two separately elected constitutional conventions presented a total of four constitutional drafts to the people. THE REVISION OF 1792 The drafters of the 1784 constitution had the foresight to realize that the document they had created would require review and perhaps revision after a relatively short period of time. A provision in the 1784 constitution required the legislature to call for the election of a convention to review the constitution seven years after its adoption. Therefore, in 1791 elections were held, and in September the constitutional convention assembled in Concord.62 This


13

convention had the benefit of using the federal constitution and examples of constitutional reform in other states as models. The end result of the convention's efforts was a significant revision of the constitution. A number of problems with the compromise constitution as adopted in 1784 had become apparent with the passage of time.63 There was a need for a clearer separation of powers. Even though the Bill of Rights declared that the three branches of government "ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit," the executive and judicial branches were weak and subservient to the legislature. The general court, as the legislature was called, was the court of last resort for both public and private matters and often overruled judicial decisions. The chief executive, styled the "president," was separately elected from legislators, but was not fully independent of the legislative branch as he presided over and voted in the senate. Although the president was commander in chief of state military forces and was able to make certain appointments, with the approval of the council, he had no veto power to exercise as a check on the legislative branch.64 Another problem was that towns, and not the state government, were constitutionally responsible for paying the wages of their representatives. The post-1784 years had been times of inflation and economic distress,65 and many towns found it difficult to pay these wages. The 1784 constitution made no provision for future amendments, beyond the convention required after the initial seven-year period. The federal constitution had taken effect after the 1784 constitution and made several provisions of the 1784 constitution outdated or confusing. For example, the New Hampshire Constitution of 1784 still required the legislature, and not the people, to elect delegates to United States Congress. The federal constitution had adopted the title of "president" for the national chief executive, so it was somewhat confusing to have the state's chief executive bear the same title. The lack of restrictions on office holders from holding several high offices simultaneously resulted in numerous cases of what would today be considered incompatible office holding. John Sullivan was at the same time the president of New Hampshire and a federal judge, and Samuel Livermore served as both chief justice of the state's highest court and delegate from New Hampshire to the United States Congress.66 About a week after the convention assembled in September 1791, it directed a committee of ten to draft constitutional revisions, based on the amendments which had been proposed by the delegates. William Plumer of Epping, a member of this committee, was probably the most influential member of the convention. He was speaker of the house and an ardent advocate for constitutional reform.67 The competing interest groups represented on the committee of ten worked over the winter of 1791-1792 and presented its recommendations for amendments in February 1792. The convention made further alternations to these amendments and presented a grand total of 72 amendments to the voters in the May 1792 elections. No convention since has ever recommended anything even remotely approaching this overwhelming number of amendments.68

14


The 72 amendments mainly affected the legislative and executive branches. The committee of ten had proposed a restructuring of the judicial branch, but this was rejected by the convention. The amendments created an independent executive, which was no longer closely linked to the legislative branch. The legislature was required to divide the state into 12 senatorial districts based on taxable property. Under the previous constitution, the legislature had the authority to do this, but had not exercised its authority. The convention tried to address the intractable problem of fair representation in the house, but, in the end, no solution could be agreed upon so the status quo remained.69 The status quo as provided in the 1784 constitution allowed each town with 150 "rateable male polls" age 21 and older to elect a representative, and to elect an additional representative for every 300 additional taxpayers. In the revision of 1792, the right to vote no longer relied on payment of the poll tax, but was changed to exclude paupers and persons who did not pay taxes at their own request. Relatively minor amendments to provisions relating to the judicial branch set a mandatory retirement age of 70 and made various changes concerning the probate courts, clerks' fees, and the separation of public and private business. The amendments allowed the general court to set, within limits, jurisdiction for probate courts and justices of the peace. The convention was then faced with the problem of presenting so many amendments in a comprehensible way. The convention voted to send each town a copy of the constitution as it would appear if the amendments were adopted, and a listing of each amendment to be voted on separately.70 Unfortunately, there was a lack of public interest and, for many, a lack of understanding. Many people chose simply not to vote.71 The total vote of 3,100 registered for the final endorsement of the amendments was less than 50 percent of the vote earlier in the same year in an uncontested gubernatorial election. The amendments were voted on at a special town meeting in May, when other town business was also attended to, leaving little time for debate.72 In light of the considerable work the committee of ten and the convention had devoted to the amendments, it is easy to imagine the consternation of the delegates when they reconvened to examine the inconsistent and contradictory results of the vote. Even though 46 of the proposed 72 amendments had been adopted, a number of the adopted amendments were in conflict with other provisions of the constitution because the changes that would have made the other provisions consistent had been rejected. The 26 rejected articles contained the most important changes proposed by the convention. The people had spoken, but they had not spoken intelligibly. Leaving an inconsistent constitution in place was not an acceptable option. The convention delegated to a committee the responsibility of developing further amendments that would resolve the constitutional inconsistencies. The convention implemented the bold solution of offering an overall single amendment covering all the deficiencies, rather than a series of amendments that might result in further contradictory results. The people had to vote the entire package up or down, and they chose to approve it


15

by a margin of 2,122 to 978, only 45 more than the required two-thirds majority. The revisions made by the 1792 amendments, which took effect in 1793,74 put into effect many of the amendments that had been voted down as too radical in 1781. The position of governor was restored and gubernatorial succession established. Council members were elected from councilor districts instead of being elected by members of the legislature. The legislature was required to have open deliberations, and legislators were prohibited from accepting fees. The state became responsible for the wages of legislators, and voter qualifications were made less restrictive. The revisions were so extensive that, for many years, the constitution was incorrectly known as the "1792 Constitution." Even the New Hampshire Supreme Court of Judicature in 1875 used this misnomer in Copp v. Henniker.15 In 1889, Supreme Court Justice William Allen pointed out that it was erroneous to refer to a constitution of 1792 because many of the provisions actually dated from the 1784 constitution and had not been amended in 1792.76 The amendments resulting from the 1791 convention comprise the only general revision of the 1784 constitution. OVER 80 YEARS OF CONSTITUTIONAL SATISFACTION For 85 years, from 1792 to 1877, New Hampshire's constitution remained unamended, except for a single amendment in 1852. The almost 60 years during which there were no changes to the constitution77 were the longest time any state has preserved its constitution without amendment.78 The voters of New Hampshire had many opportunities to vote for the calling of a convention. From 1800 to 1850, the people voted down the holding of a convention at least 10 times. The constitution required that a sense of the people "as to a revision of the constitution, and calling a convention for that purpose"79 be taken every seven years. Voters rejected the calling of a convention in 1800, 1807, 1814, 1821, 1828,80 1833, 1834, 1838, 1842,81 1844,82 and 1847.83 These dates show that, beginning in 1833, the opportunities to vote to hold a convention were even more frequent than every seven years. From 1833 to 1847, there was a vote on the average of about every two years, evidence that there was a growing sentiment, at least on the part of the Democratically dominated legislature, in favor of holding a convention. There were a number of reasons that another convention was not held until 1850. The amendments voted on in 1792 had made many revisions to the 1784 constitution. For a number of years after 1792, although periodically given the opportunity to require the calling of a convention, the electorate did not vote to require it.84 Presumably, many of the persons who voted on these amendments felt that the constitution did not require further changing. Some would have recalled the difficulties of the 1792 revision, including the holding of two separate votes and having to respond to 72 separate questions. Besides, the state would have to pay the costs of a convention, if one were held. Opponents of a

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convention also feared that a convention might go too far and propose unnecessary changes, leading to a drastically changed constitution.85 A further complication was that the question of whether to hold a convention had become a political issue during the 1830s and 1840s between the Democrats and the Federalists. The New Hampshire Patriot and Gazette, a newspaper supporting the Democratic party, complained that "[t]ime and again within the last twenty years, the Democrats in our Legislature have called upon the people to convene a Convention . . . and the federal members of the Legislature always opposed it."86 Finally, in the spring of 1850, the people agreed that the time had come to seriously consider amendments to their constitution and voted by quite a large margin87 to hold another convention which began its work in November. The convention met over a six-week period, with a break for Thanksgiving. Public pressure on the convention grew to such an extent for it to conclude its work that after its return from the Thanksgiving break it met almost every day but Sunday, including Christmas Eve day, Christmas Day, and New Year's Day. Sessions were held in the evenings and on Saturdays. Franklin Pierce, the president of the convention, and other convention leaders felt that social, economic, and religious changes in New Hampshire during the previous 60 years warranted a restructuring of state government.88 The convention voted to pose 15 questions to the voters, including major changes to each branch of government and the Bill of Rights. Two of the most important issues that had been instrumental in the calling of the convention, abolishing the religious test and property requirement for office,89 were lumped together into one question. The so-called "religious test" required representatives, senators, executive councilors, and the governor to be "of the Protestant religion," while the property requirements required that these state officers own certain amounts of property. Some alterations to the constitution may have been needed, but the convention went too far and proposed so many radical changes that all of its propositions were decisively voted down. Not even one question received a simple majority of the vote. The New Hampshire Patriot and State Gazette regretted its support for the convention, noting that the convention had lasted longer than expected, cost almost $40,000, and resulted in many more amendments than anticipated.90 It is hardly surprising that this newspaper called it a "new Constitution" which left "scarcely a feature of the old one" recognizable.91 After the defeat of its proposals, the convention reconvened and debated whether to resubmit any of the questions to the voters. United States Supreme Court Justice Levi Woodbury, one of the delegates, eloquently addressed the convention in support of resubmission of three of the proposals: abolition of the property requirement, abolition of the religious test for office, and a new mode of amending the constitution which would allow the legislature to propose constitutional amendments.92 These three questions were resubmitted, and in March of 1852, the outdated property requirement for holding office was


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removed. The final result of the work of the 1850 convention was the adoption of a single constitutional amendment, after it was put before the voters a second time. IMPORTANT CHANGES RESHAPE STATE GOVERNMENT IN 1877 Before the 1876 convention, the sense of the people was taken seven times, in 1858, 1861, 1863, 1865, 1869, 1870, and 1876.93 Besides the affirmative vote in 1876, there were also majority votes in 1861 and 1865 to call a convention, but these conventions were never held because of the Civil War. When the 1876 convention was held, New Hampshire, as well as the rest of the nation, was in the process of undergoing dramatic social, political, and economic change. In the wake of the Civil War, the business of agriculture was declining, while industrialization was on the rise. Railroads made transportation easier and faster. The population of the state was more diverse, with the influx of many Roman Catholic immigrants. The climate of the times was more receptive to constitutional change than it had been in the 1850s.94 The efforts of the 1876 convention resulted in the adoption of a number of amendments that made a decisive contribution to reshaping the government of New Hampshire into its modern form. The amendments ratified by the voters in 1877 changed state elections from annually in March to biennially in November. The senate was doubled in size from 12 to 24. The basis for representation in the house was changed from ratable polls to population (see the following discussion under "Size of the House"). The abolition of the outdated religious test for office, rejected by the voters in 1851 and 1852, was adopted. Two amendments in 1877 placed restrictions on the use of public money. One amendment prohibited the legislature from authorizing a town to loan or give its money to benefit a corporation formed to achieve "a dividend of profits" (Part 2, Article 5). Another amendment emphasized the separation of church and state by prohibiting tax money from being used for the support of religious schools (Part 2, Article 83). Since 1877, there have been 76 more amendments to the constitution. Some of the most important include setting the maximum size of the house at 400 (1942), allowing the legislature as well as a constitutional convention to propose amendments to the constitution (1964), basing representation in the senate on population instead of taxable property (1964), requiring equal apportionment in the house (1964), establishing the supreme and superior courts as constitutional courts (1966), and returning the legislature to annual sessions (1984). CONSTITUTIONAL CONVENTIONS As of 2002, there have been 16 constitutional conventions since the adoption of the first constitution in 1776. Table 1 lists these conventions and the dates on which they met. Constitutional conventions have played a greater role in constitutional development in New Hampshire than in other states because the

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convention was the only means of proposing an amendment to the constitution until 1964, when the constitution was amended to allow the legislature to also propose amendments. Although the importance of conventions was diminished in 1964, a convention, as opposed to the legislature, has the advantage of having as its sole purpose and focus the amendment of the constitution. The question of whether to hold a convention must be voted on by the people at least every ten years, and last appeared on the November 2002 ballot, when it did not receive the required majority vote. AMENDMENTS TO THE CONSTITUTION, 1792-2002 The following sections summarize constitutional amendment activity by subject matter, focusing on six important areas of activity: (1) the size of and basis of apportionment in the legislature, including the treatment of small towns in the system of representation in the house, (2) executive branch powers, (3) independence of the judicial branch, (4) tax reform, (5) voting rights, and (6) home rule. A final section discusses three other areas of amendment: sectarian references in Part 1, Article 6; the amount in controversy required for a jury trial; and restrictions on the use of revenues. These summaries do not reflect all amendments to the constitution, but only those areas that were often debated by conventions or the legislature. Table 2 provides a chart that includes these topics and some additional topics.95 Size of the House Most of the amendments affecting legislative size and apportionment have involved the New Hampshire House of Representatives. The house has always been a large body in proportion to the population of the state and in comparison to other representative bodies. The New Hampshire legislature is today the third largest representative body in the English-speaking world, after the United States House of Representatives and the British House of Parliament. Measures to limit the size of the house and to set the manner of apportioning the membership of the house have always been controversial. There are three interrelated threads to follow in the history of representation in the house: the issue of the size of the house, the issue of equal apportionment, and the treatment of small towns. Amendments relating to the size of the house were considered by every convention from 1850 to 1938, and eight separate amendments relating to the issue appeared on the ballot, two of which were ratified by the voters. For many years, there was no numerical limitation on the size of the New Hampshire house. The formula for representation for about the first hundred years of New Hampshire's existence as a state was based on the number of a town's "rateable polls," which generally meant male inhabitants subject to taxation. % A town was allowed one representative for 150 ratable polls, with 300 ratable polls required for each additional representative. As the number of voters increased,


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so did the size of the house. The first elected house had 91 members, but by 1876 the house had already grown to 391 members.97 In 1877, a constitutional amendment changed the basis from ratable polls to population, increasing the number required for the first representative from 150 ratable polls to 600 inhabitants. The change from ratable polls to inhabitants was a fundamental shift. The 1876 convention discussed the ratable poll issue at length.98 The meaning of ratable polls had varied over the years, and towns had sometimes manipulated the ratable polls standard for their benefit. But changing the basis for one representative to 600 inhabitants still did nothing to set a size limitation on the house. The amendment of 1877 resulted in reducing the number of representatives in the house to 280, but this was only a temporary solution. As time went on, the membership of the house increased, as the population of the state increased. By 1902, the house numbered 397 members. It appeared that Representatives Hall would soon be too small to accommodate the house. According to Justice William Martin Chase of the New Hampshire Supreme Court, there were "very few citizens that do not feel that the house is too large to secure the best quality of membership and the best results of deliberation."99 Nineteen resolutions on the subject were introduced at the 1902 convention, but there were basically two plans: variations of the town plan then in effect and the district plan. The "town plan" as it stood in the constitution in 1902 favored small towns, giving a representative to any town with 600 inhabitants, with an additional 1,200 inhabitants required for each additional representative. The 1902 convention presented an amendment to the voters which was a variation on the town system with a small element of the district system. It required a minimum of 800 population for one representative for a town and 1,600 for two, with a local option feature which would have allowed contiguous towns, wards, and places to voluntarily unite into a district. A majority of the voters favored the plan, but the number fell short by about 2,000 votes of the required two-thirds. By 1912, when the next convention assembled, the house had grown to over 400 members,100 but the convention could not agree on an amendment to reduce the size of the house. The convention of 1920 proposed two different solutions to the problem, both of which were rejected by the voters. Both proposed solutions would have reduced the house to between 300 and 325, one plan basing representation on the number of votes cast in the last presidential election, the other on population. The 1930 convention proposed requiring 600 inhabitants for the first representative and 1,500 instead of 1,200 for each additional representative, reducing the house by taking some representation away from the larger places. This was also rejected by the voters. When the 1938 convention reconvened in 1941, it had the results of the 1940 census to consider. Under the constitutional formula, the house would increase because of the increase in population, from 423 to 443. 101 Some argued that the house would be too large to function efficiently and, as a practical matter, the house was again outgrowing its space in Representatives Hall. There was considerable debate at the convention over various proposals for reducing the

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house. The plan finally endorsed by the convention put a numerical cap of the size of the house, still in effect in 2002, allowing it to range in size from 375 to 400. Equal Apportionment in the House Until 1964, New Hampshire's formula for representation in the house was not based on equality. Before 1964, whether the requirement for the first representative was 150 ratable polls or 600 inhabitants, twice that number was required for the second and any successive representative. This formula was designed to give an advantage to the smaller towns. When the 1784 constitution was adopted, New Hampshire had developed, with the rest of New England, a system of town government which continued in place even after the Revolution changed the manner in which the state was governed at the state level.102 The town was the traditional unit of local government, and townspeople wanted to have direct representation in state government. Representatives of small towns were a powerful force in the house and constitutional conventions and, of course, were not anxious to give up the advantage provided by the formula. These factors made it difficult to change the existing system. The inequity resulting from the pre-1964 formula had long been recognized. The problem was well described by Justice William Martin Chase in an address about a month before the convening of the 1902 convention: 'it is apparent to all who think upon the subject that there are still serious defects in our constitution. The one which attracts the most attention and which has been the main inducing cause of the previous attempts to amend it, is the basis of representation in the house of representatives. . . . The effort made in the plan finally adopted to give each of the smaller towns a representative—an effort that has been repeated in later conventions when the subject has been considered—is the principal cause of the existing defects. . . . Under the present provision [giving the larger towns less representation relatively than is given to the smaller towns], Bow with a population of 617 is entitled to one representative, while Ward Five in Concord, with a population of 2,609—more than four times that of Bow—is entitled to only two."103 The issue of equal apportionment was not resolved until the constitution was amended in 1964 to provide that representation in the house was to be "as equal as circumstances will admit." The long-standing "two for one" formula104 met its demise after the United State Supreme Court established the "one person/one vote" standard.105 Just five days after the 1964 convention adjourned on June 10, a series of decisions issued by the United States Supreme Court made it clear that the Equal Protection Clause of the United States Constitution required election districts throughout the country to give each voter an equally weighted vote.106 Now it was evident that the provision of the New Hampshire Constitution that required twice as many in population for a second and any additional representative, as for the first representative, did not meet the federal constitutional standard. The president of the convention recalled the convention


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for a one-day session to address the problem. The voters ratified equal representation for the house of representatives on the November 1964 ballot. Treatment of Small Towns When the permanent constitution was adopted, a special provision relating to small towns provided for their grouping together or "classing" for purposes of representation. Many citizens of small towns were dissatisfied with this arrangement, wanting not to be grouped together with other towns, but to have their own town represented by itself in the legislature. In 1889 a compromise between the small towns and larger towns and cities was adopted. This constitutional amendment ended the "classing" of towns and allowed small towns that did not qualify for a representative on the basis of population to be represented in the legislature a proportional part of the time, based on population. Many small towns, however, were still dissatisfied with this arrangement because a very small town might be able to elect a representative only very infrequently, permitting "taxation without representation."107 For example, under this system, with a requirement for 600 inhabitants for one representative, a town of 60 inhabitants would be entitled to have a representative one-tenth of the time. The concerns of small towns led to the amendment in 1942 that allowed each town, no matter how small, to have a representative in the house at least once every ten years. This amendment, included as part of the amendment to cap the size of the house at 375 to 400, was a "concession to the smaller towns"108 to encourage their support for the cap on house size. This system existed until 1964 when the convention of 1964, under the threat of an adverse ruling from the federal court and to meet the requirement of one person/one vote, proposed an amendment deleting this provision and ending part-time representation. When the voters adopted the amendment in 1964, small towns were once again placed into districts with other towns for representation. Senate Size and Basis of Representation The size of the senate has also been considered several times, but not as frequently as that of the house. The increase from 12 to 24 members in 1877 somewhat reduced the great disparity in size between the house and the senate, but proposals to increase the senate beyond 24 members on the ballot in 1912, 1964, and 1974 were all defeated. Although the proposed increase in 1964 in the size of the senate was not ratified by the voters, the voters did approve an amendment requiring that the senate be apportioned on the basis of population and not taxable property, without dividing any town, city wards, or unincorporated places. In 1964 the largest senatorial district had about three times the population as the smallest. New Hampshire was the only state to use this antiquated method of

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apportionment, and it was in violation of Fourteenth Amendment of the United States Constitution. Executive Branch Powers The revision of 1792 had made the executive branch more independent of the legislative branch by removing the requirement that the governor preside over and vote in the senate and strengthening the governor's authority by giving him veto power. There have been two frequently proposed amendments which would have tipped the balance of power more toward the executive branch, had they been adopted. The voters rejected a four-year term for governor three times (1970, 1982, 1984) and giving the governor item veto power three times (1912, 1920, 1930).109 While the people of New Hampshire have been reluctant to increase executive power, they have also been reluctant to diminish it. An amendment that would have taken away the governor's pocket veto power under Part 2, Article 44 was defeated at the polls in 1976. Another proposed amendment on the ballot relating to the governor's powers was also rejected in 1976. The amendment would have taken away the power of governor and council to "prorogue" or prevent the legislature from coming back into session for up to 90 days after it adjourned.110 The governor's executive powers were condensed and clarified by amendments in the 1950s and 1960s. In 1956, Part 2, Article 49 was amended to provide that the governor has authority to transact official business when absent from the state. In 1966, Part 2, Article 41 was reworded to clarify the governor's powers. The governor's powers as commander in chief were condensed in Part 2, Article 51 in 1968. Gubernatorial succession, or who exercises the powers of the governor if the governor is unable to do so, has been redefined several times. The senate president was made next in line to the governor in 1792. The speaker of the house was added after the senate president in 1889. In 1968, the secretary of state and the state treasurer were added. In 1984, the constitution was amended to address several important issues relating to succession in the case of a governor's prolonged physical or mental incapacity. The voters rejected in 1976 the substitution of the senior member of executive council for the other state officers in the line of succession. In 1980, an amendment was rejected that would have prohibited the senate president or house speaker from voting in the legislature while serving as acting governor,111 but this amendment was adopted in 1984 as part of the amendment dealing with incapacity. Judicial Branch Amendments Three twentieth-century amendments to the constitution made the judicial branch more independent and further defined its powers. Part 2, Article 4 gives the legislative branch the power to establish courts. The constitution of 1784,


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however, did not constitutionally establish any particular courts, although there was provision made for probate court sessions and the hearing of divorce and probate appeals by the superior court, then the state's highest court. An amendment to the constitution in 1966 gave the supreme and superior courts constitutional status under Part 2, Article 72-a. This amendment protected these courts from being abolished by act of the legislature. Until the 1966 amendment, the legislature had the power to abolish and reestablish courts, along with the judges of those courts, whenever it pleased. As political power changed hands, the legislature had exercised this power six times in the nineteenth century.112 Also in 1966, another amendment was adopted that specified the required procedures for the removal of a commissioned officer by a process called "legislative address." Without this requirement, the legislature could, theoretically at least, remove a judge for any reason if the governor and council concurred. In 1978, another new article was added, expressly making the chief justice of the supreme court the administrative head of all the courts and providing for the adoption of rules governing the courts by the chief justice with the concurrence of a majority of the other supreme court justices. An amendment in 1912 gave the legislature authority to create "police courts" (now the district courts) to hear criminal cases when the punishment was less than one year of imprisonment in the state prison. There have also been amendments proposed for ratification concerning election of judges (1850), removing the age limitation for judges (1850), and protecting judges from the reduction of their salaries while in office (1978). None of these amendments was adopted.113 Limited Tax Reform Because of the constitutional limitations placed on the legislature's ability to assess taxes, tax reform has been a frequent topic of proposed amendment to the constitution. There is a long and complex history of the interpretation of the constitution's taxation provisions in Part 1, Article 12 and Part 2, Articles 5 and 6 by the New Hampshire Supreme Court. The constitution prohibits graduated taxes of any kind because all taxes must be "proportional and reasonable." Property, both real and personal, was the principal basis for tax revenue in the nineteenth and early twentieth centuries. The state property tax remained one of the main components of state tax revenue until the 1930s.114 Many of the tax amendments proposed to the constitution were intended to reduce the state's reliance on the property tax. The 1902 convention, in response to the popular demand for additional sources of taxation, proposed an amendment to Part 2, Article 6. Before 1902, the constitution limited the taxable classes of property to "polls and estates." In addition, the legislature could not impose different flat rates on different classifications of taxable property. The 1902 amendment allowed the taxation of other classes of property besides polls and estates, including franchises and property passing by will or inheritance.

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After 1902, conventions proposed tax amendments containing various components eight times. None of these proposals, in 1912, 1920, 1921, 1923, 1930, 1938, 1948,115 and 1964,116 met with success with the voters. However, two more narrowly drawn amendments have been adopted. The constitution was amended in 1942 to permit the classification and taxation of standing timber at a different rate from real property. In 1968, a new article was added, allowing tax valuation based on current use to allow qualifying land to be taxed at a lower rate than other real estate. The current use article was intended to protect open land, especially farm land and forest land, from development by allowing it to be taxed at a lower rate. Voting Rights During the second half of the twentieth century, a number of constitutional provisions relating to the right to vote and hold office were updated. These provisions related to literacy requirements, voting by people who did not pay taxes, minimum age for voting or holding office, absentee voting, women's suffrage, and access to registration places and polls. The literacy requirement in Part 1, Article 11, dating from 1902, was not removed until 1968. The constitution required that a voter or office holder be able to read the constitution in the English language and write his name, with certain exceptions related to age or disability. Payment of taxes was tied to the right to vote until 1968 for paupers and persons excused from taxes at their own request, and until 1976 for inhabitants of unincorporated places who had voted not to assess local taxes on themselves. The provision relating to inhabitants of unincorporated places was voted down at the polls in 1968, but resubmitted and ratified in 1976. By the time they were repealed, these disqualifications were not enforced in many voting districts, but they were still in the constitution.117 The 1968 amendment brought Article 11 of the Bill of Rights into conformity with United States Supreme Court decisions which interpreted the Fourteenth Amendment of the United States Constitution to prohibit denial of the right to vote for nonpayment of taxes. An amendment relating to voting by "paupers" had also been proposed by the 1938 convention, but voted down at the polls. This convention did not consider removing the restriction, but wanted to clarify the power of the legislature to define "pauper" for voting purposes. According to a statement made during the debate on the amendment, the clarification was needed because there had been uneven enforcement of the laws defining a pauper in connection with the right to vote.118 The adoption of the Twenty-Sixth Amendment to the United States Constitution, effective on July 1, 1971, gave 18-year-olds the right to vote in every state. The New Hampshire Constitution at that time required that persons be at least age 21 to vote or hold office, except for the offices of senator, councilor, and governor, which had a higher minimum age requirement. The federal constitutional change lowered the voting age in New Hampshire to 18.


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Because under the New Hampshire Constitution qualifications for voting and holding office were the same, except when otherwise provided under the constitution, an amendment to the New Hampshire Constitution was required to retain the New Hampshire requirement that persons had to be at least 21 to hold elective office.119 An amendment appeared on the March 1972 ballot that would have accomplished this by prohibiting persons between the ages of 18 and of 21 from holding elective office. The change was not adopted. The New Hampshire Constitution was brought into conformity with the federal constitution by amendments clarifying that the minimum age of voters was 18 in 1974 (Part 2, Article 28) and 1976 (Part 1, Article 11). The authorization for the legislature to make provision for absentee voting first appeared in Part 1, Article 11 in 1942. This amendment allowed for absentee voting at general elections (biennial, city, or state elections). The voters had twice rejected proposed amendments allowing absentee voting in 1930 and 1938,120 but World War II had brought a new focus on the issue. In 1956, absentee voting rights under the article were expanded to allow absentee voting at primary elections. These rights were expanded again in 1976, when the article was amended to allow the absentee ballot in town elections by official ballot as well as in general or primary elections. For almost 175 years, Part 2, Article 28 of the constitution provided that only "male inhabitants" could vote for senators. The conventions of 1902 and 1912 discussed this reference in terms of women's suffrage. The voters rejected a constitutional amendment providing for women's suffrage in 1902, which would have eliminated this reference. The topic was considered again in 1912, but no proposed amendment was presented to the people.121 The 1918 convention, convening in 1921, voted to submit an amendment removing the word "male" from Article 28, the same amendment proposed in 1902 but now including a proviso intended to remove any question relative to the holding of office by women. 122 The issue of women's suffrage had been settled in light of the ratification of the Eighteenth Amendment to the United States Constitution in January of 1920. The amendment was rejected at the polls in 1921123 and again in 1938.124 It was not until 1958 that the reference to only "male" inhabitants being allowed to vote in Article 28 of Part 2 was removed from the constitution. The change was somewhat overdue, as the right to vote had been extended to women back in 1920. Part 1, Article 11 was amended for the last time in the twentieth century in 1984 to require that voting registration and polling places be easily accessible to disabled persons. Home Rule Two amendments, in 1966 and 1984, placed limitations of the power of the state to control local affairs. In 1966, Part 1, Article 39 was adopted to prohibit the legislature from changing a town or city charter without a local referendum approving the change. Another aspect of "home rule" was addressed by the

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addition of Part 1, Article 28-a in 1984. This article limits the state's power to impose programs on local government, without the consent of the county, city, or town. The article prohibits "unfunded state mandates" and requires state funding for programs mandated or expanded by the state and imposed by the state on counties, cities, or towns. The concern about unfunded mandates was also an issue in other states and at the national level. Miscellaneous Sectarian References in Article 6 of Part 1. Between 1850 and 1920, seven variations on the question to remove the so-called sectarian references in Article 6 of the Bill of Rights (see discussion under Part 1, Article 6), including references to "evangelical principles" and to the support of "protestant teachers of piety, religion and morality," were considered and rejected by the voters.125 These references were finally removed when the question appeared on the ballot again in 1968, describing the references as "obsolete." Amount in Controversy Required for a Jury Trial. In 1784, there was no minimum amount in controversy required for a civil jury trial. In 1877 the constitution was amended to allow a jury trial only if the amount in controversy exceeded $100 and no title to real estate was involved. Because a dollar amount was specified, the question of amending this article of the constitution frequently appeared on the ballot, as inflation resulted in the reduction of the value of the amount specified and the backlog for civil jury trials grew. Increases in the amount in controversy appeared on the ballot six times after 1877.126 Twice amendments were ratified, increasing the amount in 1960 to $500 and in 1988 to $1,500. Restrictions on the Use of Revenues. Without a constitutional limitation, the temptation exists for the legislature, especially in times of fiscal crisis, to look for any source of revenue available. This has resulted in the constitutional creation of special funds relating to highways, retirement systems, and aid to education. The so-called "highway fund" received its constitutional basis in 1938, when a new Article 6-a was added to Part 2. This article provides that motor vehicle revenues must be used for "construction, reconstruction and maintenance of public highways," and not for other fiscal purposes. In 1984, an amendment added a new Article 36-a to the Bill of Rights to protect the retirement funds of public employees. The article requires that public retirement funds must be used exclusively for the benefit of the appropriate retirement system and that public retirement systems must be fully funded each fiscal year. And in 1990, after the legislature had created a state lottery intended to benefit the educational system, a new Article 6-b was added to Part 2 to require the legislature to use any lottery revenues for aid to education.


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CONCLUSION The constitution, as of 2002, has been amended 144 times over the course of its 218-year existence. Table 3 shows the number of amendments proposed by conventions and the legislature between 1792 and 2002 and the number of ratified amendments. Compared with many other states, New Hampshire has had relatively few changes to its constitution. Several reasons may explain this. First, the constitution was based on sound principles from the beginning, adapted from the carefully crafted work of John Adams. Second, the document, with a few exceptions, does not address everyday details of government commonly covered by statute, so it does not require frequent amendment to update such provisions. Finally, and as a practical matter, it is more difficult to amend the constitution in New Hampshire than in many other states because a two-thirds ratification vote is required, rather than a simple majority The character of the 1784 document and many of its original articles are retained in the constitution of 2002. Only four separate new articles have been added to the Bill of Rights,127 and none of the topics of the 1784 Bill of Rights have been deleted. In the Bill of Rights, Part 1 of the constitution, there are 23 articles out of the total 42 articles that have never been amended. Although only 19 out of the 101 articles in Part 2 have been unchanged since 1784, the Form of Government defined by Part 2 still retains essentially the same constitutional framework set out in 1784. The constitution of 2002 has been updated by the removal of most of its obsolete provisions. New topics have been added, primarily addressing modern fiscal issues. This vital document will undoubtedly continue to be reshaped to apply to future concerns. NOTES 1. Richard Francis Upton, Revolutionary New Hampshire: An Account of the Social and Political Forces Underlying the Transition from Royal Province to American Commonwealth (New York: Octagon Books, 1971), pp. 68, 176. 2. James Duane Squires, The Granite State of the United States, A History of New Hampshire from 1623 to the Present (New York: The American Historical Company, 4 Vols., 1956), Vol. l,p. 153. 3. Robert L. Maddex, State Constitutions of the United States (Washington, DC: CQ Press, 1998), p. 251. 4. Walter Farleigh Dodd, The Revision and Amendment of State Constitutions (Baltimore: The Johns Hopkins Press, 1910), pp. 24-25. 5. Jere R. Daniell, Colonial New Hampshire: A History (Millwood, NY: KTO Press, 1981), p. 248. 6. See the discussion in the section, "The World's First Modern Constitutional Convention." 7. The United States Constitution was ratified by the required minimum number of states when New Hampshire was the ninth state to ratify it on June 21, 1788. Jere R. Daniell, "Ideology and Hardball, Ratification of the Federal Constitution in New Hampshire," William M. Gardner, Frank C. Mevers, and Richard F. Upton, eds., New

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Hampshire, The State That Made Us a Nation: A Celebration of the Bicentennial of the United States Constitution (Portsmouth, NH: Peter E. Randall, 1989), p. 1. 8. The Virginia Declaration of Rights was drafted by a convention that met May 6, 1776, and adopted the declaration June 12, 1776. The Pennsylvania Declaration of Rights was adopted by a convention that assembled July 15, 1776, and finished its work September 28, 1776. See William Finley Swindler, ed., Sources and Documents of United States Constitutions (Dobbs Ferry, NY: Oceana Publications, 1979), Vol. 10, p. 48 and Vol. 8, p. 277. 9. King Charles II granted a royal commission to John Cutt of Portsmouth on September 18, 1679, which went into effect in January of 1680. Squires, The Granite State of the United States, Vol. 1, p. 33. 10. See State of New Hampshire Manual for the General Court (Concord, NH: Department of State, 2001), p. 89 for a complete list of chief executives and their titles. 11. Squires, The Granite State of the United States, Vol. 1, pp. 35-36. 12. See Daniell, Colonial New Hampshire, pp. 126-127, for a discussion of the role of the council and assembly in the early eighteenth century. 13. Upton, Revolutionary New Hampshire, p. 19. 14. See Daniell, Colonial New Hampshire, for a discussion of the transition from colonial to revolutionary governance. 15. Upton, Revolutionary New Hampshire, p. 25. 16. Lynn W. Turner, The Ninth State: New Hampshire's Formative Years (Chapel Hill: University of North Carolina Press, 1983), p. 12. 17. Daniell, Colonial New Hampshire, p. 119. 18. Journals of the Continental Congress, Worthington C. Ford, ed. (Washington, DC: Government Printing Office, 1904-1931), Vol. Ill, p. 319. 19. Upton, Revolutionary New Hampshire, p. 43. 20. Turner, The Ninth State, p. 13. 21. Upton, Revolutionary New Hampshire, pp. 176—177. 22. Turner, The Ninth State, p. 14. Turner points out that the constitution of 1776 had no legal basis for existence, and its authority rested upon adoption by an extralegal convention (fifth provincial congress) that had been elected according to precepts issued by a preceding extralegal body (fourth provincial congress). 23. 1776 Constitution; See Appendix 1. 24. Under its 1691 charter, Massachusetts had a general court of assembly, the members of which were elected by freeholders at town meetings. The 28-member council was elected by the assembly. Massachusetts also had a governor and lieutenant governor, but the functions of these officers were given under the New Hampshire Constitution to the legislature. Benjamin W. Labaree, Colonial Massachusetts, A History (Millwood, NY: KTO Press, 1979), pp. 119, 126. 25. Jere R. Daniell, Experiment in Republicanism: New Hampshire Politics and the American Revolution, 1741-1794 (Cambridge: Harvard University Press, 1970), p. 117. 26. Turner, The Ninth State, p. 15. 27. Upton, Revolutionary New Hampshire, pp. 43-44. 28. Documents and Records Relating to New Hampshire, 1621U1800, Nathaniel Bouton et al., eds., 40 vols. (Concord and Manchester: NH State Printer, 1867-1943), Vol. VII, p. 701. These volumes are collectively known and will be cited here as the New Hampshire State Papers. 29. New Hampshire State Papers, Vol. VIII, p. 14. 30. Daniell, Experiment in Republicanism, pp. 165—166. 31. New Hampshire State Papers, Vol. X, pp. 229-235.


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32. Woodward was a professor at Dartmouth and the son-in-law of Dartmouth's founder, Eleazer Wheelock. Ralph Nading Hill, ed., The College on the Hill, A Dartmouth Chronicle (Hanover, NH: Dartmouth Publications, 1964), pp. 119-121. 33. Upton, Revolutionary New Hampshire, p. 178. 34. Daniell, Experiment in Republicanism, p. 150. 35. Daniell, Experiment in Republicanism, p. 148. 36. New Hampshire State Papers, Vol. X, p. 234. 37. Daniell, Experiment in Republicanism, p. 152. 38. New Hampshire State Papers, Vol. VIII, p. 775. 39. Unfortunately, no journal exists for this convention, or for the convention that met during 1781-1783. 40. Especially in the twentieth century, the convention of 1778 was often referred to as the second constitutional convention. William Plumer in his address presented to the New Hampshire Historical Society on June 16, 1853, The Constitution of New Hampshire, referred to the 1778 convention as the "second constitutional convention," the first one being the body that adopted the 1776 temporary constitution. The widely used Manual of the Constitution of the State of New Hampshire written by Dartmouth professor James Colby in 1902 appears to have brought this numbering system, which refers to the 1776 fifth provincial congress as the first constitutional convention, into more common use. Justice William Martin Chase in November of 1902 referred to the 1778 convention as "second constitutional convention." The numbering system was commonly used in newspaper articles beginning in the 1930s, in various publications, including the New Hampshire State Library's New Hampshire Constitutional Amendment Proposals (1984), and also by delegates attending twentieth-century conventions. 41. Diary and Autobiography of John Adams, L. H. Butterfield, ed. (Cambridge: Belknap Press of Harvard University Press, 4 Vols., 1961), Vol. 3, p. 352. 42. Massachusetts, Colony to Commonwealth, Documents on the Formation of its Constitution, 1775-1780, Robert J. Taylor, ed. (Chapel Hill: University of North Carolina Press, 1961), pp. 36-37. 43. Massachusetts, Colony to Commonwealth, Taylor, ed., pp. 48-49. 44. Turner, The Ninth State, p. 18. 45. James Fairbanks Colby, Manual of the Constitution of the State of New Hampshire, Compiled from Official Sources and Edited, with Sketch of the Constitutions of the State, the Basis of Representation, and Appendix (Concord, NH: J. B. Clarke, 1912), p. 77. Colby refers to the list of delegates compiled from town records by G. Parker Lyon (in the New Hampshire Register for 1852, of which Lyon was editor), in which it appeared that about 90 towns were represented by 74 delegates. 46. Turner, The Ninth State, p. 18. 47. Upton, Revolutionary New Hampshire, p. 181. 48. Turner, The Ninth State, p. 19. 49. Daniell, Experiment in Republicanism, pp. 154-160. 50. Daniell, Experiment in Republicanism, p. 162. 51. Journal of the House, April 5, 1781, printed in New Hampshire State Papers, Vol. VIII, p. 897. 52. Karen Bowden, "After the Revolution, The Transformation of New Hampshire Towns, 1780-1800," Gardner et al., ed., New Hampshire, The State That Made Us a Nation, pp. 81-82. 53. G. Alan Tarr, Understanding State Constitutions (Princeton, NJ: Princeton University Press, 2000), p. 86; Daniell, Experiment in Republicanism, p. 171.

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54. See David G. McCullough, John Adams (New York: Simon & Schuster, 2001) pp. 125-130. 55. This idea was inspired by the system recommended in the "Essex Result," a report of the Essex, Massachusetts, county convention written by Theophilus Parsons of Massachusetts. Daniell, Experiment in Republicanism, p. 172. 56. New Hampshire State Papers, Vol. IX, p. 877. 57. Daniell, Colonial New Hampshire, pp. 173-174. 58. Turner, The Ninth State, p. 26. 59. Upton, Revolutionary New Hampshire pp. 184-185. 60. The New Hampshire House of Representatives adopted a resolve on February 17, 1783, noting that peace was likely to soon be accomplished and that, if this happened before a new constitution was adopted, the "present government" needed to be continued to "guard against the dreadful evils naturally flowing from anarchy." The house requested that the selectmen of the towns place the resolve to continue the present government until June 10, 1784 at their next annual town meeting. The council concurred in the resolve the following day. Laws of New Hampshire, Vol. 4 (1776-1784), pp. 507-508. 61. See section on "Size of the House" for a discussion of the meaning of ratable polls. 62. Colby, Manual of the Constitution of the State of New Hampshire, p. 124. 63. See the discussion in Turner, The Ninth State, pp. 126-127. 64. Upton, Revolutionary New Hampshire, p. 185. 65. Daniell, "Ideology and Hardball," p. 5. 66. Turner, The Ninth State, pp. 126-127. 67. William Plumer, Jr., in his book about his father, Life of William Plumer (Boston: Phillips, Sampson & Co., 1857), p. 124, states that the constitution as amended by the convention of 1791-1792 was known as "Plumer's Constitution." According to Superior Court judge Samuel Livermore, as quoted by Plumer, the reference was originally meant in a derogatory way, implying that the constitutional revisions were the work of one man rather than the work of the entire convention. 68. See Table 3 for a listing of the number of amendments proposed to the voters from 1792 to 2002. 69. Turner, The Ninth State, pp. 130-131. 70. Journal of the Convention to Revise the Constitution (1791-1792) as printed in New Hampshire State Papers, Vol. X, pp. 111-112. 71. For example, in Moultonborough, only 16 freeholders voted on the amendments in 1792, while in 1778, when the town population was smaller, 46 people cast votes in a dispute concerning a local minister. Wolfeboro did not even vote on the amendments. William L. Taylor, "Years of Revolution, Years of Decision: Attitudes and Reactions in the Lakes Region during the 1770s and 1780s," Gardner et al., ed., New Hampshire, The State That Made Us a Nation, pp. 147-148, 150. 72. Turner, The Ninth State, p. 136. 73. New Hampshire State Papers, Vol. X (1877), p. 164. 74. Laws of 1792, ch. 15 (in Laws of New Hampshire, Vol. 6 (1792-1801) was entitled "An Act to carry into effect the Constitution of this State as altered and amended by the late Convention, passed Dec. 14, 1792." The act provided that the provisions relating to the choice of members of the legislature, executive officers of the state, county treasurer, and recorder of deeds were to take effect February 1, 1793. The "whole of said Constitution" was to take effect on the first Wednesday of June, 1793 (June 5, 1793). 75. Coppv. Henniker(\875) 55 "N.H. 179 at 191. 76. State v. Saunders (1889) 66 N.H. 39 at 72.


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77. The 1792 amendments took effect in 1793, so 59 years of constitutional repose finally ended when an amendment proposed by the 1850 convention was ratified in 1852. 78. Colby, Manual of the Constitution of the State of New Hampshire, p. 168. 79. Former Article 99 of Part 2. 80. A vote appears to have been taken, at least in some towns. The town records of Danville for February 15, 1828, list an item on the warrant to "take the sense of the qualified voters on the subject of a revision of the constitution," although the record of the March 11 meeting gives no record of such a vote. Although Colby, Manual of the Constitution of the State of New Hampshire, p. 169 does not refer to a vote being taken in 1828, the taking of such a vote was referred to indirectly in the June 13, 1833 Senate Journal. Senator Lovell of the Judiciary committee reported on the governor's message relating to revision of the constitution "that we fully concur with the views of his Excellency, expressed in the message on this subject, and as the time fixed by the Constitution to again take the sense of the people, comes within another year, we have thought it proper to do no more than simply request his Excellency, the Governor to issue his precept for that purpose." The constitution then required that vote be taken every seven years. 81. The Senate Journal from the June session of 1842 for June 11, pp. 60-61, contains a report of a vote taken at the March 1842 town meeting, 10,819 voting against, and 1,788 in favor of a revision of the constitution. The journal also lists 46 towns as having made no returns and 10 towns as having taken no vote. 82. The Senate Journal from the November session of 1844 for November 28, 1844, p. 21, reports votes from 213 towns regarding a revision of the constitution, with 20,994 against and 10,855 in favor. The legislature had passed a resolution to place the question before the people on June 19, 1844. 83. The returns from votes taken in 1800, 1807, 1814, 1821, 1833, 1834, 1838, 1844 (listed as 1845), and 1847 are given in Constance T. Rinden and Jane Lyman, New Hampshire Constitutional Amendment Proposals (Concord, NH: New Hampshire State Library, Law Division, 1984), p. 13. 84. Colby, Manual of the Constitution of the State of New Hampshire, pp. 168-169. 85. New Hampshire Patriot and State Gazette, March 27, 1851. 86. New Hampshire Patriot and State Gazette, April 24, 1851. 87. The recorded vote was 28,877 in favor and 14,482 against. Rinden and Lyman, New Hampshire Constitutional Amendment Proposals, p. 13. 88. Colby, Manual of the Constitution of the State of New Hampshire, p. 170. 89. New Hampshire Patriot and State Gazette, March 27, 1851. 90. New Hampshire Patriot and State Gazette, March 27, 1851. 91. New Hampshire Patriot and State Gazette, March 27, 1851. 92. See the remarks of Justice Woodbury reported in the New Hampshire Patriot and State Gazette, April 24, 1851. 93. Rinden and Lyman, New Hampshire Constitutional Amendment Proposals, p. 13. 94. James G. Steproe, Centennial Crossroads, New Hampshire's Constitutional Convention of 1876, unpublished thesis (Dartmouth College, 1993), pp. 18-28. 95. See Ruth Jeffries and Philip A. Hazelton, New Hampshire Constitutional Conventions (Concord, NH: New Hampshire State Library, 1956) for amendments proposed between 1792 and 1948 and Rinden and Lyman, New Hampshire Constitutional Amendment Proposals for amendments proposed up to 1984. 96. It is hard to arrive at an exact meaning for the term "rateable [ratable] polls." The term was not defined by the courts or by statute for the first half-century after the adoption of the 1784 constitution. A June 1835 court opinion clarified that "aliens"

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(noncitizens residing in the state) were to be included as ratable polls because they were taxable, but persons over age 70 were not, because they were excused from taxation. Opinion of the Justices (1835) 8 N.H. 573. In 1842, a statute defined a "ratable poll" as a male inhabitant age 21 and older. 97. Colby, Manual of the Constitution of the State of New Hampshire, p. 328. 98. Colby, Manual of the Constitution of the State of New Hampshire, pp. 274— 281.The Colby Manual contains an article by William Hugh Mitchell entitled "The Basis of Representation in the House of Representative in New Hampshire since 1784" (pp. 268-283) which discusses the issue of ratable polls. 99. Concord Evening Monitor, November 4, 1902. 100. Concord Evening Monitor, May 23, 1912. This figure, presumably, includes part-time members. The New Hampshire Manual for 1911 lists 393 members for the 1911 session. 101. Journal of the Convention to Revise the Constitution, September 1941, p. 64, in an address by Del. Robert W. Upton. 102. Daniell, Colonial New Hampshire, p. 237. 103. Justice Chase's address to the South Church Business Men's Conference on November 2, 1902, was printed in the Concord Evening Monitor of November 4, 1902. The same remarks, entitled "A Review of Organic Law Development," were printed for the benefit of the 1902 convention and are included in the Journal of the Convention to Revise the Constitution, December 1902, pp. 208-222. Associate Justice William Martin Chase served on the New Hampshire Supreme Court from March 24, 1891, until his retirement on December 28, 1907, at age 70. 104. The "two for one" formula is explained in the Concord Daily Monitor of July 7, 1964, as a system requiring "that a town or ward have twice as many residents to elect a second representative—and all subsequent ones—than were required to elect a first." 105. Baker v. Carr, 369 U.S. 186, decided in 1962 and Wesberry v. Sanders, 376 U.S. 1, decided in early 1964, preceded the "one-person/one-vote" cases decided in June of 1964. 106. The six decisions, all decided June 15, 1964, were Reynolds v. Sims, 377 U.S. 533, the principal case (Alabama), Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (Colorado), Maryland Committee v. Tawes, 311 U.S. 656 (Maryland), Roman v. Sincock, 311 U.S. 695 (Delaware); Davis v. Mann, 377 U.S. 678 (Virginia); and WMCA, Inc. v. Lomenzo, 377 U.S. 633 (New York). 107. See, for example, the remarks of delegates Edith D. Banfield and E. James Winslow in the Journal of the Convention (1938). Del. Banfield asks the legislature not to "tax [smaller towns] without representation" (p. 176). Del. Winslow expresses his concern over the "lack of representation, or the disfranchisement of many towns, part of the time" (p. 183). 108. "Convention Given 3 Plans to Reduce Size of House and May Recess Tonight," Concord Daily Monitor, September 25, 1941. 109. Rinden and Lyman, New Hampshire Constitutional Amendment Proposals, p. 14. The proposal for a four-year term which had not been submitted to the voters at the time of publication in May of 1984 was defeated in November of that year. 110. This amendment would have amended Articles 43 and 50 of Part 2 of the Constitution. The meaning of "prorogue" was given by the New Hampshire Supreme Court in Opinion of the Justices (1944) 93 N.H. 474. 111. Rinden and Lyman, New Hampshire Constitutional Amendment Proposals, p. 80.


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112. Frank R. Kenison, "The Judiciary under the New Hampshire Constitution, 1776-1976," one of the Three Addresses Given at the Commemoration of the Adoption of New Hampshire's First State Constitution January 5, 1776 (New Hampshire American Revolution Bicentennial Commission 1977), p. 14. 113. Rinden and Lyman, New Hampshire Constitutional Amendment Proposals, pp. 16,79. 114. Peter J. Loughlin, "The Direct State Property Tax," New Hampshire Law Bulletin (Oct. 1999), p. 27. 115. Jeffries and Hazelton, New Hampshire Constitutional Conventions, pp. 33, 35, 36, 38, 40 and 45. 116. Rinden and Lyman, New Hampshire Constitutional Amendment Proposals, p. 60. 117. Voters' Guide for November 1968 Election, Explanation for Question No. 1. See also Report to the Fifteenth Constitutional Convention by the Commission to Study the State Constitution (Concord: Evans Printing Co., 1964), p. 27. 118. Concord Daily Monitor, "Con Con May Give Voters 4 Proposals," May 28, 1938. 119. Voters' Guide for March 7, 1972 Election, Explanation for Question. 120. Jeffries and Hazelton, New Hampshire Constitutional Conventions, pp. 38-39. 121. Journal of the Convention to Revise the Constitution (1938), pp. 411, 433. 122. Journal of the Convention to Revise the Constitution (Special Session of January 28, 1921), pp. 426-427. 123. Jeffries and Hazelton, New Hampshire Constitutional Conventions, p. 36. 124. In 1938, the reference to "male" inhabitants would have been eliminated as part of an amendment proposed to Article 28 of Part 2 relating to voting by paupers, but the elimination of the "male" reference was not mentioned in the question presented to the voters. See Journal of the Convention to Revise the Constitution (1938), pp. 321-322. 125. Jeffries and Hazelton, New Hampshire Constitutional Conventions, pp. 24 (1850), 26 (1851, 1876), 29 (1889), 31 (1902), 33 (1912), 35 (1920). 126. In 1956, 1960, 1976, 1984, 1986, and 1988. 127. Article 2-a (right to bear arms), Article 28-a (mandated programs), Article 36-a (use of retirement funds), and Article 39 (municipal charter changes must be approved by voters in municipality). Other important additions which have been made by amending existing articles include: nondiscrimination language (Article 2); public's right to know (Article 8); absentee voting, right of persons to vote not dependent on payment of taxes, right to vote at age 18 (Article 11); right of indigent persons to counsel (Article 15); and right of free speech (Article 22).


Part II

New Hampshire Constitution and Commentary

INTRODUCTION TO CONSTITUTIONAL COMMENTARY Since the 1980s, the New Hampshire Supreme Court has followed a national trend of giving primary importance to the interpretation of the state constitution, when a protection for an individual right exists under both the state and federal constitutions. In 1983, the court decided State v. Ball (1983) 124 N.H. 226, in which the court held that when a defendant has invoked the protections of the New Hampshire Constitution, the court would first address those claims. The court recognized that the federal constitution provided a minimum level of national protection of fundamental rights, and that the New Hampshire Supreme Court had often found that the New Hampshire Constitution was more protective of individual rights than the parallel provisions of the United States Constitution. The court outlined the procedure it would follow when analyzing a claim under the state constitution: the court would first examine the New Hampshire Constitution and only then, if it found no protected rights thereunder, would the court examine the federal constitution to determine whether it provided greater protection. The court pointed out that a decision based on articulated adequate and independent state grounds was not subject to higher review, whereas a decision based on the federal constitution was reviewable by the United States Supreme Court. In the analysis of Part 1 of the New Hampshire Constitution, the Bill of Rights, the discussion will refer to the corresponding provisions of the United States Constitution when the New Hampshire Supreme Court has found that the federal constitution offers no greater protection than the New Hampshire Constitution or that the protection afforded by the New Hampshire Constitution is greater than that of the federal constitution. In both of these situations, the New Hampshire Supreme Court will base its decision on the state constitution

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and rely upon federal cases interpreting the federal constitution only to aid in its analysis. The cases discussed in the constitutional commentary date up to 2002. The title of each article of the New Hampshire Constitution is shown within brackets. Article titles were editorially inserted in the 1842 edition of the Constitution and Laws of the State of New-Hampshire, the first codification of New Hampshire statutory law. Since that time, article titles have been indicated in brackets in publications of the New Hampshire Constitution, even if the article title was part of the article as adopted by the voters. After each article, the year given in the source is the year in which the provision or amendment was adopted by the voters. The year of adoption is the same as the year the provision or amendment took effect in accordance with action by the legislature or proclamation by the governor, except that all of the amendments adopted in 1792 did not take effect until 1793. Unless the context requires otherwise, references to "court" or "supreme court" are references to the New Hampshire Supreme Court. "RSA" means New Hampshire Revised Statutes Annotated, the current codification of the New Hampshire statutes. In the context of a statewide vote on ratification of a constitutional amendment, the term "voters" refers to the qualified voters, present and voting at a particular election. The required percentage for ratification is two-thirds of the qualified voters. The constitutional text is the text as printed in the booklet The New Hampshire Constitution 1784, for 2001-2003, published by the Secretary of State, except for several minor corrections of typographical errors, as noted in brackets after the applicable articles.

New Hampshire Constitution: Part 1, the Bill of Rights

ARTICLE 1. [EQUALITY OF MEN; ORIGIN AND OBJECT OF GOVERNMENT.] All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good. Source: 1784. This article states the principle of equality of all people, that government originates from the people, and that the purpose of government is the general good. The beginning phrase, "All men are born equally free and independent," is the same language used by John Adams in his draft for the 1780 Massachusetts Constitution (Part 1, Article 1), taken from the Virginia Declaration of Rights. Adams' language was changed, to his dissatisfaction, by the Massachusetts convention to "All men are born free and equal," the language of Thomas Jefferson in the Declaration of Independence.1 The rest of article incorporates the concept of John Locke's social contract—that people consent to be governed and that government is for the common good. This same concept is expressed in the preamble of the 1780 Massachusetts Constitution. The principle of equal rights has been part of the New Hampshire Constitution since it took effect in 1784. As well as in Article 1, the principle is also found in articles 2, 6, 10, 12, and 14 of the Bill of Rights. Equal protection guarantees that all people are entitled to enjoy equal privileges and to be governed by equal laws. People who are similarly situated must be similarly treated. State v. Amyot (1979) 119 N.H. 671. Equal protection does not require complete equality {Petition of State Employees' Association of New Hampshire, Inc. (1987) 129 N.H. 536). A town charter requirement that members of the police force live in the town did not violate the officers' rights to equal protection, because the role of police officers was distinguishable from the role of other town employees, for whom there was

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no such requirement {Seabrook Police Association v. Town of Seabrook (1993) 138 N.H. 177). The amendment of a statute allowing the formation of cooperative school districts did not result in a violation of the equal protection guarantee, even though districts formed before the amendment of the legislative enabling statute required only a simple majority vote for amendment of the articles of agreement instead of a two-third's majority {In re Kearsarge Regional School District (1994) 138 N.H. 211). In addition to the fact that the law allowing the creation of cooperative school districts was amended in 1963 to allow district voters to choose to require a two-third's majority for changes to the funding formula, a rational basis existed for requiring a supermajority when matters of substance were at issue. The test the court applies to determine if a classification violates equal protection is what is called the "rational basis test," as long as the classification does not affect a fundamental right or an important substantive right or classify on the basis of race, creed, color, gender, national origin, or legitimacy. (See discussion under Part 1, Article 2.) When the rational basis test applies, a legislative classification is justified, if it is rationally related to a legitimate state interest. Economic classifications, such as current use classifications, are typically subject to the rational relationship test. This article has been cited by the court in a number of cases when applying the rational basis test. One instance involved the legality of a bill which would have eliminated trial de novo appeal to superior court for misdemeanor defendants in one county of the state for a temporary two-year period, while retaining the option for trial de novo appeal for the same class of defendants in other counties. The classification was found to be rationally related to the legitimate state interest of determining whether elimination of the trial de novo system would actually reduce state expenditures and deliver justice more efficiently. Therefore, the classification did not violate equal protection. Opinion of the Justices (Misdemeanor Trial De Novo) (1992) 135 N.H. 549. In another case, the land use change tax was challenged as violating equal protection because the law imposed a penalty in addition to the land use change tax, if the use of the property was changed within ten years of the date the property was placed into current use, but no penalty was imposed if the change took place after the expiration of the ten-year period. The court found there was a rational basis for the classification, so there was no violation of equal protection. Opinion of the Justices (Current Use Reimbursement Program) (1993)137N.H. 270. However, the court found a violation of the equal protection rights of certain truckers who were charged with violating a law regulating truck weights on highways in State v. Amyot (1979) 119 N.H. 671. The law contained a special exception for truckers transporting unprocessed forest products in certain northern sections of the state who obtained a special permit, for which the truckers challenging the law did not qualify. This classification was found to be an arbitrary and irrational classification and unrelated to the public safety and highway maintenance purposes of the overweight truck statutes.


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[ART.] 2. [NATURAL RIGHTS.] All men have certain natural, essential, and inherent rights—among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin. Source: 1784. Amended 1974. This article recognizes that all people have certain natural rights and enumerates some of those rights. The article also prohibits discrimination on the basis of race, creed, color, sex, or national origin. The first sentence is derived from part of Article 1 of Part 1 of the Massachusetts Constitution of 1780, with small variations in wording. The New Hampshire version speaks of "inherent" rights, whereas Massachusetts uses the term "inalienable" rights. The second sentence prohibiting discrimination was added in 1974, two years after New Hampshire had ratified the federal Equal Rights Amendment. This article is perhaps the most frequently cited equal rights article of the New Hampshire Constitution, although other articles (Part 1, Articles 1,6, 10, 12, and 14) also contain equal rights elements. Equal rights protection is also guaranteed under the equal protection clause of the Fourteenth Amendment to the United States Constitution, which the New Hampshire Supreme Court has found to offer no greater protection than the equal protection provisions of the New Hampshire Constitution. Longchamps Electric, Inc. v. New Hampshire State Apprenticeship Council (2000) 145 N.H. 502. The equal protection guarantee applies to conduct of the state, and not private conduct. Sometimes state conduct is easy to identify, as when the action of a state official is involved. Other situations are not as clear. In In re Certain Scholarship Funds (1990) 133 N.H. 227, the participation of the school principal, school board, and city trustees of trust funds in the administration of a private scholarship trust with discriminatory, gender-based provisions amounted to state conduct covered by this article. However, a private trust document which benefited only legitimate children was found to involve no state conduct, and therefore did not violate the equal protection rights of a child born out of wedlock. In re Dumaine (1991) 135 N.H. 103. This article recognizes certain fundamental rights, namely, the rights of acquiring, possessing, and protecting property, of seeking and obtaining happiness, and of enjoying and defending life and liberty. These rights are not bestowed by this article, but rather are recognized to be among the natural and inherent rights of all humankind. Burrows v. City ofKeene (1981) 121 N.H. 590. The rights which have been recognized specifically as natural and inherent rights include the right to defend one's property {Aldrich v. Wright (1873) 53 N.H. 398), the right to use and enjoy one's property {Buskey v. Town of Hanover (1990) 133 N.H. 318), and the right to hold public office {Hale v. Everett (1868) 53 N.H. 9). The right of citizens to travel and to determine their own residency has also been recognized as a fundamental right under the New Hampshire

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Constitution {Donnelly v. City of Manchester (1971) 111 N.H. 50), although the court in Donnelly did not specifically refer to Article 2 as the source of that right. In Angwin v. City of Manchester (1978) 118 N.H. 336, the court noted that the New Hampshire Constitution afforded greater protection than the federal constitution as to the right to travel and to determine one's residency. Parental rights over the family are also natural, essential, and inherent rights. State v. Robert H (1978) 118 N.H. 713. Such rights, however, are not absolute. The state may interfere with the fundamental rights of parents if applicable due process requirements have been met. In re Doe (1983) 123 N.H. 634. Before the permanent termination of parental rights can occur, due process requires that the government must prove its case beyond a reasonable doubt. In re Baby K. (1998) 143 N.H. 201. Due process was not satisfied at a parental rights termination hearing where a telephone was used to connect the incarcerated father with his attorney, because the father did not have fair opportunity to participate and respond. His attorney had to serve as both advocate and conduit, a role not anticipated before hearing. In re Baby K. (1998) 143 N.H. 201. A parent's interest in decisions regarding the custody and rearing of his or her children is also a fundamental right. Provencal v. Provencal (1982) 122 N.H. 793. A father's right to a continuing relationship with his child born out of wedlock had its foundation in the "natural, essential and inherent rights" recognized in this article. Locke v. Ladd{\919) 119 N.H. 136. In determining whether there has been a violation of equal protection, the court examines the scope and purpose of the classification and which rights are affected. The New Hampshire Supreme Court has adopted the three-tier equal protection analysis applied by the United States Supreme Court in the evaluation of equal protection challenges to federal law, namely, the "rational relationship test," the middle-tier "substantial relationship test," and the highest level of "strict scrutiny." The appropriate standard of review depends upon the rights affected. The New Hampshire Supreme Court reviews equal protection claims solely under the state constitution, because it finds the federal constitution provides no greater protection in the area of equal protection. Petition of Abbott (1995) 139N.H. 412. When the New Hampshire Supreme Court adopted the middle-tier substantial relationship test in Carson v. Maurer (1980) 120 N.H. 925, it noted particularly that it was not restricting its application of the middle-tier substantial relationship test to cases involving classifications based upon gender and illegitimacy, as had the United States Supreme Court. The court stated in Maurer, as it has on numerous occasions, that in interpreting the state constitution, it would not be confined to federal constitutional standards and was free to grant individuals more rights than the federal constitution required. The rational relationship test applies if the classification does not involve a suspect class, a fundamental right, or an important substantive right under the state constitution. Such a classification will be upheld if it is rationally related to a legitimate state interest. The middle-tier substantial relationship test applies to classifications of important substantive rights and requires that the classification


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be reasonable, not arbitrary, and rest upon some ground of difference having a fair and substantial relationship to the object of the regulation. The highest level of scrutiny, strict scrutiny, applies to a classification that affects a fundamental right or involves a suspect class based on race, creed, color, gender, national origin, or legitimacy. LeClair v. LeClair (1993) 137 N.H. 213. Cases decided under this article under the rational relationship test which found no violation of equal protection include Kerouac v. Town ofHollis (1995) 139 N.H. 554 (town truck weight limit); Opinion of Justices (Misdemeanor Trial De Novo) (1992) 135 N.H. 549 (misdemeanor trial de novo bill); In re Kearsarge Regional School District (1994) 138 N.H. 211 (supermajority requirement for amending cooperative school district articles); LeClair v. LeClair (1993) 137 N.H. 213 (law allowing a court to require a divorced parent to pay an adult child's college expenses when no similar provision existed for married parents); and Buskey v. Town of Hanover (1990) 133 N.H. 318 (residential zoning ordinance under which the plaintiff was denied a variance for business use). In State v. LaPorte (1991) 134 N.H. 73, the court applied the rational relationship test and found a violation of equal protection. A law was designed to protect children under age 16 from repetitive subjection to interrogation without judicial supervision by barring discovery depositions of victims and witnesses who were under 16 years of age at the time of an offense. The law, however, also operated to bar depositions by those who had attained the age of 16 at the time of the discovery request, if they were under 16 when the offense occurred. The portion of the law that barred depositions of victims and witnesses who were at least 16 years old at the time of discovery was found to violate equal protection because it had no rational relationship to the statute's goal of protecting children under age 16. There is no fundamental right to recover for one's injuries, but the right to recover for one's injuries under Part 1, Article 14 has been found by the court important enough to apply the middle-tier standard of review. Under this standard, the test applied by the court is whether classifications made by the legislature which restrict recovery are reasonable and based on a difference which has a fair and substantial relation to the object of the legislation. City of Dover v. Imperial Casualty & Indemnity Co. (1990) 133 N.H. 109. The middletier substantial relationship test has been applied to important substantive constitutional rights, including the right to recover for personal injuries under Part 1, Article 14 {Rooney v. Fireman's Fund Ins. Co. (1994) 138 N.H. 637) (lien provision of workers' compensation statute had a fair and substantial relation to the legitimate legislative objective of preventing double recovery). The substantial relationship test has also been applied to the right to use and enjoy private real property subject to zoning regulations. Asselin v. Town of Conway (1992) 135 N.H. 576. Although property rights are fundamental rights under Part 1, Article 12, a zoning ordinance regulating use of property does not receive strict scrutiny because zoning ordinances balance the use and enjoyment of some residents against the use and enjoyment of others. Chesterfield v.

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Brooks (1985) 126 N.H. 64. The application of the substantial relationship test in the area of municipal zoning regulations is a higher standard than the rational relationship test applied by the United States Supreme Court, so this is one of the areas in which the New Hampshire Constitution provides greater protection than the federal constitution. Asselin v. Town ofConway (1992) 135 N.H. 576. A violation of equal protection rights of persons injured on municipal highways and sidewalks was found by the court in City of Dover v. Imperial Casualty & Indemnity Co. (1990) 133 N.H. 109. In this case, a provision of law which afforded immunity to municipalities for actions in negligence arising out of ownership and maintenance of public streets and highways was found to be unconstitutional because it was arbitrary and overbroad, giving immunity from suit to municipalities that were aware of the problem and failed to take reasonable action. The court has found a violation of equal protection in strict scrutiny cases involving sex discrimination in Buckner v. Buckner (1980) 120 N.H. 402 (alimony statute which authorized alimony for a wife but not a husband) and Cheshire Medical Center v. Holbrook (1995) 140 N.H. 187 (common law necessaries doctrine that obligated husband to pay for wife's expenses but was not reciprocal violated equal protection clause). In Cheshire Medical Center, the court modified the common law necessaries doctrine to make obligations reciprocal for both husband and wife and held that the spouse who received the necessary services was primarily liable. [ART.] 2-a. [THE BEARING OF ARMS.] All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state. Source: 1982. This article gives individuals the right to bear arms in defense of themselves, their families, their property, and the state, and is similar to constitutional provisions in many other states. In 1981, many other states had a state constitutional provision guaranteeing the right to bear arms, and New Hampshire was the only New England state without such a provision.2 A longer version of the article, which specified that the legislature could prescribe the manner in which arms could be borne, was defeated by a narrow margin in 1978. This relatively recent addition to the state constitution was interpreted in 1990 by State v. Smith (1990) 132 N.H. 756. The court found that the right to bear arms under the state constitution was not an absolute right, so the legislature could place reasonable restrictions on it. A law which prohibited felons convicted of certain types of crimes from possessing dangerous weapons was a reasonable restriction. Another case on the right to bear arms, State v. Sanne (1976) 116 N.H. 583, predated adoption of the amendment. This case held that a state statute reasonably regulating the right to bear arms did not violate the Second


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Amendment to the United States Constitution, which was not a grant of a right, but a limitation upon the power of Congress and the national government. The defendant was convicted for carrying two pistols without a license. |ART.j 3. [SOCIETY, ITS ORGANIZATION AND PURPOSES.] When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void. Source: 1784. This article expresses John Locke's idea of the social compact into which members of society enter and under which they agree to give up some of their natural rights in exchange for the protection of society. Natural rights, such as freedom of assembly and freedom of speech, may be subject to reasonable and nondiscriminatory regulation. The concept in this article of surrendering rights for the common good of society in exchange for something else is also present in Part 1, Article 14, as illustrated in particular by the workers' compensation cases and the quid pro quo doctrine. (See the discussion under Article 14). The New Hampshire Supreme Court has long recognized that the natural rights enumerated in Article 2 are conditioned by Article 3, so that, upon becoming members of society, people surrender their natural right to be governed by their own wills when their own will is in conflict with the general will. Mayo v. Wilson (1817) 1 N.H. 53. The natural right to do as one pleases has often come into conflict with state law or regulation. The cases interpreting this article have generally dealt with the limits on individual rights. This article has been applied by the court to uphold compulsory school attendance laws {State v. Jackson (1902) 71 N.H. 552), a law requiring vaccination before attending school {State v. Drew (1937) 89 N.H. 54), a local licensing requirement for holding meetings in a public park {State v. Derrickson (1951) 97 N.H. 91), a law requiring people to take shelter during a civil defense alert {State v. Pinsince (1963) 105 N.H. 38), and a law that made illegal the blocking of a highway by Vietnam war protesters {State v. Albers (1973) 113 N.H. 132). In accordance with this article, a prisoner did not have the constitutional right to starve himself to death because the state's interest in maintaining an effective criminal justice system prevailed over the prisoner's right to privacy {In re Caulk (1984) 125 N.H. 226). [ART.] 4. [RIGHTS OF CONSCIENCE UNALIENABLE.] Among the natural rights, some are, in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the Rights of Conscience. Source: 1784.

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Article 4 identifies a subset of natural rights that enjoy a higher protection than other natural rights, namely, inalienable natural rights. The article declares that certain natural rights, including the rights of conscience, are inalienable because no government or person can give an equivalent in return. Hale v. Everett (1868) 53 N.H. 9. Such rights cannot be surrendered to or taken away by government or society. One of these rights of conscience is recognized in Article 5 of the Bill of Rights as the right to worship God according to one's conscience. The article generally has been interpreted to apply to freedom of religion issues, in conjunction with Article 5. However, one could not claim rights under Articles 4 and 5 without making concessions of some of one's natural rights under Article 3, the social contract. State v. Drew (1937) 89 N.H. 54. This article protects witnesses from inquiry into details of their religious beliefs because personal scrutiny into their faith and conscience would have violated the article. Free v. Buckingham (1879) 59 N.H. 219. However, during the McCarthy era, the court held in 1957 that this article and Article 5 did not allow an executive director of a world peace organization to claim protection from being compelled to provide guest registration information for a facility operated by the organization and sought by a legislative committee investigating subversive activities, even though an "atmosphere of religion" surrounded the case. Wyman v. Uphaus (1957) 100 N.H. 436. Persons charged with breaking various laws who have sought protection under Article 4 have generally been unsuccessful. Litigants have unsuccessfully sought the protection of Article 4 when refusing to comply with a law requiring persons to seek shelter during a civil defense practice drill {State v. Pinsince (1963) 105 N.H. 38), when protesting the Vietnam war by blocking a street {State v. Weitzman (1981) 121 N.H. 83), and when attempting to send a child to school without legally required vaccinations {State v. Drew (1937) 89 N.H. 54). Certainly there is no "inalienable right" to sell liquor {State v. Corron (1905) 73 N.H. 434) or lightning rods {State v. Stevens (1916) 78 N.H. 268). The state can regulate such activities by requiring licenses. |ART.] 5. [RELIGIOUS FREEDOM RECOGNIZED.] Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession, sentiments, or persuasion; provided he doth not disturb the public peace or disturb others in their religious worship. Source: 1784. This is the "free exercise of religion" clause of the constitution. The purpose of this article is to protect diversity of religious opinion, as long as one's


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religious practices do not disturb the peace or interfere with others in their worship. The wording of this article is very similar to Article II of the Massachusetts Constitution of 1780. The main difference is that the Massachusetts Constitution refers to the "right as well as the duty" to worship the "Supreme Being" while New Hampshire omits the idea of duty and describes a "natural and inalienable right to worship God" according to the dictates of one's own conscience. This article of the constitution recognizes the right to worship God according to the dictates of one's own conscience. Opinion of the Justices (Choice in Education) (1992) 136 N.H. 357. The state cannot make judgments about the truth of different religious theories. The son of one of New Hampshire's most famous citizens, Mary Baker Eddy, sued after her death to prevent the Christian Science Church from benefiting under her will. The court applied this article and upheld the will. The court found that the state could not make any judgments about the truth of religious theories, and the test in this case was whether or not a purpose for disposition of property under a will was legal. Glover v. Baker (1912) 76 N.H. 393. Although the state cannot discriminate against different forms of creeds or worship, the state can regulate conduct in accordance with its police powers. The exercise of the police power must be reasonable and without discrimination. The proviso at the end of the article has been interpreted in cases testing the limits of the exercise of police power in the face of a person's religious practices. In 1886, a statute that prohibited the beating of a drum without the command of a military officer in the compact part of a town was upheld and found not to conflict with Article 5, even when the beating of the drum was for religious purposes and there was no evidence that anyone was actually disturbed. State v. White (1886) 64 N.H. 48. A state law which required a permit for an "information march" held by Jehovah's Witnesses was a valid exercise of this police power because there was no intent in the statute to restrain freedom of religion. State v. Cox (1940) 91 N.H. 137.3 Assertions that one is practicing religion do not protect against having to comply with other regulatory laws. In two different cases, psychologists who claimed to incorporate religious aspects into their treatment were not protected by Article 5 {Petition of Smith (1994) 139 N.H. 299 and Appeal of Trotzer (1998) 143 N.H. 64). The court found that the psychologists were entitled to their religious beliefs but were properly sanctioned for not complying with state requirements for treatment of patients. The religious ideas asserted must have some sort of definition. A parent claimed in a 1937 case that he had religious objections to the preschool vaccination of his child, but the court found his ideas were "religious opinions" and did not involve questions of religious liberty. State v. Drew (1937) 89 NH 54. This type of situation was addressed by the legislature in 1987 when it enacted a law which provided that children could be exempted from child immunization requirements because of religious beliefs (RSA 141-C:20-c). An

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"atmosphere of religion" was not enough to protect guest information registration of the World Fellowship Center from subpoena by a legislative committee investigating subversive activities in a 1957 case {Wyman v. Uphaus (1957) 100 N.H. 436). [ART.] 6. [MORALITY AND PIETY.] As morality and piety, rightly grounded on high principles, will give the best and greatest security to government, and will lay, in the hearts of men, the strongest obligations to due subjection; and as the knowledge of these is most likely to be propagated through a society, therefore, the several parishes, bodies corporate, or religious societies shall at all times have the right of electing their own teachers, and of contracting with them for their support or maintenance, or both. But no person shall ever be compelled to pay towards the support of the schools of any sect or denomination. And every person, denomination or sect shall be equally under the protection of the law; and no subordination of any one sect, denomination or persuasion to another shall ever be established. Source: 1784. Amended 1968. [The text in the publication, The New Hampshire Constitution 1784, for 2001-2003, contains a typographical error, "bodies, corporate"] This article provides that (1) parishes and religious societies may select their own teachers, contract with them, and pay for their support, (2) no one can be compelled to pay for the support of religious school of any sect or denomination, and (3) all denominations and sects are equally protected under the law. The version adopted in 1784 was based on Part 1, Article III of the Massachusetts Constitution of 1780. Both the New Hampshire and Massachusetts articles dealt with need for religious instruction to preserve good government, and the issue of how to support that instruction. Both versions also provided that no one sect or denomination could be subordinated to another. The New Hampshire version of 1784 empowered the legislature to authorize towns to "make adequate provision at their own expense, for the support and maintenance of public protestant teachers of piety, religion and morality." This "establishment clause" in Article 6, allowing the establishment of a tax to support religion, should be understood in light of its history. At the time of the 1784 constitution, public religious worship was generally supported by townassessed taxes and most citizens were Protestant, belonging to the Congregational church. The legislature, in 1791, made this clause operational by passing an act "for Regulating Towns and the Choice of Town Officers," which included a provision authorizing the voters of each town to collect taxes for the support of the local ministry.4 In practice, the law of 1791 supported the Congregational establishment, because it was difficult for dissenters to be excused from paying the tax by proving membership in another faith, even though Article 6 provided that no one of any particular sect or religion could be compelled to pay toward the support of another sect or religion.5 Towns authorized and enforced the tax to varying degrees. The religious tax was


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repealed by the "Toleration Act" of 1819,6 as the number of members of other faiths as well as those who did not practice any particular religion had increased and there was considerable opposition to favoring an established church with tax money. The constitutional convention of 1791 proposed an amendment, which was not adopted, which would have provided procedures for persons to dissent to supporting a settled minister. The text of Article 6 from 1784 to 1968 gave the legislature the right to allow towns to require support for "Protestant" teachers of "piety, religion and morality," made reference to "public worship of the Deity," and provided equal protection only to denominations of "Christians." Every convention from 1850 to 1918 proposed amendments eliminating the references to "Protestant" in the article, but without success. Following these unsuccessful efforts, conventions from 1930 to 1956 did not even propose an amendment to the voters. The language of the article became increasingly anachronistic. The sectarian language in Article 6 was finally removed by an amendment in 1968, having been barely ratified with approval of a little less than 68 percent of the voters. Perhaps in order to retain as much of the original language as possible, the language of the 1968 version crafted by the constitutional convention of 1964 left in the right of "parishes . . . or religious societies" to elect "their own teachers" and contract with them for their support. Powers of Parishes and Religious Societies The court has not interpreted this part of the article since its amendment in 1968. Before its amendment, commentators pointed out that Article 6 provided for discriminatory treatment of religions other than Protestants in violation of the First Amendment.7 The New Hampshire Supreme Court, even in 1868, noted that this article did not forbid the legislature from allowing towns or religious societies from providing for support of religious teachers other than Protestants. {Hale v. Everett (1868) 53 N.H. 9). Prohibition of Use of Public Money for Sectarian Purposes The second part of the article prohibits the application of public money for sectarian purposes. In an opinion on the constitutionality of a proposed law, the court has interpreted this prohibition as making unconstitutional the proposed use of school vouchers which would have allowed parents dissatisfied with their children's school to send their children to an alternative school. Opinion of the Justices (Choice in Education) (1992) 136 N.H. 357. The sending school would have been required to pay up to 75 percent of the tuition at the new school, and no safeguard existed to prevent the application of public tax moneys to sectarian purposes, namely, the payment of tuition at sectarian schools. However, a proposed law which provided that public money would be used for nursing scholarships did not violate the constitution, even though many hospitals providing the nursing training were conducted under the auspices of religious

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denominations, because the funds were devoted to the public purpose of nurse training and not for sectarian purposes. Opinion of the Justices (1955) 99 N.H. 519. All Denominations and Sects Equally Protected The third part of the article was amended in 1968 to remove a sectarian reference to protection under the law for "every denomination of Christians," and now refers to "every person, denomination or sect." The equality of all denominations and religious sects in the eyes of the law has long been recognized. Union Baptist Society v. Town of Candia (1819) 2 N.H. 20. Connected with this concept is the separation of church and state, also a fundamental constitutional doctrine affirmed in Muzzy v. Wilkins (1803) Smith (N.H.) 1, a case that predates the formally reported New Hampshire Supreme Court cases, which begin in 1816. The opinion of the court in Muzzy has been cited by the New Hampshire Supreme Court as recently as 1992. Opinion of the Justices (Choice in Education) (1992) 136 N.H. 357. This part of the article has been applied in upholding the legislative property tax exemption for churches. In Warde v. Manchester (1876) 56 N.H. 508, the city of Manchester attempted to tax the property being used as a school for young ladies run by Roman Catholic Sisters of Mercy, although the legislature had granted property tax exemptions for "all houses of public worship, schoolhouses, and seminaries of learning." Even though the court noted that "the protestant religion is regarded with peculiar favor" under Article 6, the same article required that every denomination of Christians was equally under the protection of the law, so that the school run by the Sisters of Mercy was entitled to the tax exemption. A parish house which was used for some religious and some secular uses qualified for the tax exemption in St. Paul's Church v. City of Concord (1910) 75 N.H. 420. Another context in which the principle of equality of denominations and sects under the law has been applied is when parents involved in a divorce custody battle have different and conflicting religious beliefs. A court may not favor one party's religious beliefs over the other party's and may consider religious beliefs only as they relate to "the concerns and temporal welfare" of the child {Sanborn v. Sanborn (1983) 123 N.H. 740), but a court may properly consider the manner in which a parent chooses to impart these beliefs to a child {Chandler v. Bishop (1997) 142 N.H. 404). |ART.) 7. |STATE SOVEREIGNTY.] The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled.


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Source: 1784. This article states that the people of the state are sovereign. This article is almost word-for-word the same as Part 1, Article IV of the 1780 Massachusetts Constitution. "Commonwealth" is changed to "state," and New Hampshire adds a clarifying phrase that the people enjoy the rights which are "pertaining" to the rights of state sovereignty. Both articles include the idea that people enjoy these rights except when expressly delegated to the United States Congress. Sovereign powers are the powers that are essential to the maintenance of government and incapable of alienation or impairment. Such powers include police powers and the powers of taxation and eminent domain. Trustees of Phillips Exeter Academy v. Exeter (1940) 90 N.H. 472. The people themselves, and not their elected representatives, are the true sovereign power of the state. Therefore, there are limitations on the powers of the legislature. For example, the legislature cannot grant an irrevocable tax exemption. Trustees of Phillips Exeter Academy v. Exeter (1940) 90 N.H. 472. However, the legislature did have the power to create an interstate school district, when the district had received all other necessary state and federal approvals. Dresden School District v. Hanover School District (1964) 105 N.H. 286. The sovereign power of the state extends only to its borders. A police officer in hot pursuit could not arrest a person in the state of Maine, because Maine was beyond the territorial jurisdiction of the state of New Hampshire. If the police officer had believed the offender was a fleeing felon, an exception would have applied allowing the arrest under the Uniform Law on Interstate Fresh Pursuit. State v. Goff (1978) 118 N.H. 724. In the late 1970s, two cases involving federal aid applied Article 7. In Opinion of the Justices (1978) 118 N.H. 7, the court found that the governor did not have the authority to disregard the selection by the legislature of the state department of health and human services as the state health planning and development agency for the purposes of federal funds. The legislative act superseded the governor's executive order, even though Congress had passed a law that required the governor of each state to designate a state health planning and development agency to administer the use of federal funds. Article 7 gives the people the exclusive right to govern themselves, subject only to powers or rights "by them expressly delegated to the United States," and New Hampshire had not delegated to the federal government the authority to decide how the state would organize health planning. In In re Jack O'Lantern (1978) 118 N.H. 445, the court noted that the growth of federal aid threatened to encroach on the state's sovereignty. The court was concerned that a state administrative hearing may have been tainted by implied threats of a federal highway official that federal aid could be endangered by a "wrong" decision. One commentator, Robert Gilmore, has contended that the word "expressly" used in the last part of the article is one of most glaringly obsolete provisions of our constitution because it is settled constitutional law since the 1930s that the

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powers of the federal government do not have to be "expressly" delegated to it by the states.8 Gilmore points out that the language of Article 7 is very similar to Article II of the Articles of Confederation, and Article 7 was drafted before the United States Constitution came into effect, when the Articles of Confederation still governed the country. Gilmore speculates that John Adams adopted his wording from the Articles of Confederation when composing this article in the Massachusetts Constitution. In addition, the relationship between the states and the federal government was changed when the United States Constitution was ratified, because the Supremacy Clause of Article VI made the "Constitution and the laws of the United States . . . the supreme Law of the Land." |ART.| 8. [ACCOUNTABILITY OF MAGISTRATES AND OFFICERS; PUBLIC'S RIGHT TO KNOW.| All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted. Source: 1784. Amended 1976. The main points of Article 8 are that the people are sovereign, government is accountable to the people, our government is a representative and not a pure democracy, and the public has a right to know about governmental proceedings. The first sentence, which dates from the 1784 constitution, is closely based on Part 1, Article V of the 1780 Massachusetts Constitution. The rest of the article was added in 1976. The constitutional convention Bill of Rights committee recommended to the 1974 convention that Article 8 should be amended to include the public's right of access to governmental proceedings and records because the right was "extremely important and ought to be guaranteed by a constitutional provision."9 Although there was a state law on the subject, a constitutional amendment gave more protection than a statute, which could be changed by the legislature. The first part of the article is to be read in conjunction with Article 7, affirming that the people are sovereign and not their government. Opinion of the Justices (1971) 111 N.H. 175. The accountability of the magistrates and officers to the people forms the foundation of a representative democracy. Because the state is a representative democracy, legislation of a general character affecting the whole state may be enacted only by the legislature, which consists of the agents of the people. The article has long been used to support the proposition that state-wide referenda are not constitutional because it is the legislature which must enact the laws under the New Hampshire Constitution. State v. Hayes (1881) 61 N.H. 264. This long-standing principle was recently affirmed. A proposed referendum, which would have allowed the voters to decide between two different tax plans to provide state funding for education, was found


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unconstitutional in Opinion of the Justices (Tax Plan Referendum) (1999) 143 N.H. 429. Magistrates and officers are "accountable" in that they are often elected officers and are accountable at the time of election. The question of how such magistrates and officers are accountable was addressed in a case when legislation was proposed which would have required the speaker of the house to be elected by a roll call vote. The court found that there was no special method of accountability under the constitution, and that Part 1, Article 8 did not require that the speaker be elected by a recorded vote. Opinion of the Justices (1971) 111 N.H. 175. The provision of the article that affirms citizens' power to be involved in governmental decisions has been cited as authority for differentiating the situation between governmental units and private parties as potential tort defendants. The court upheld a monetary limit in a statute on tort recovery for bodily injuries against governmental units, finding that such limits were incentives to reduce risks. In the public sector, as opposed to the case of a private party, citizens can participate in the decisions that create the risk of injury. Estate ofCargill v. City of Rochester (1979) 119 N.H. 661. The last two sentences of the article became part of the article in 1976, and added a constitutional dimension to New Hampshire's Right-to-Know Law, RSA 91-A. Lodge v. Knowlton (1978) 118 N.H. 574. The law was enacted in 1967 as "Access to Public Records."10 Under this article and the Right-to-Know Law, the public should have the greatest possible access to actions of all public bodies. Union Leader Corporation v. City of Nashua (1996) 141 N.H. 473. The legislature has defined what "unreasonably restricted" means in the Right-to-Know Law, by listing certain specific exemptions to what records are available. There is a presumption in favor of disclosure, but the court must first make an inquiry into whether a privacy interest would be invaded. In 1992 the New Hampshire Supreme Court set out procedures and standards to be used when a member of the public or the press seeks access to sealed court records. The court held that under constitutional and decisional law of the state, there is a presumption that court records are public and the burden of proof rests with the party seeking closure or nondisclosure of court records to demonstrate some overriding consideration that outweighs the public's right of access. Petition of Keene Sentinel (1992) 136 N.H. 121. This is a heavy burden to meet, and the defendants in this case, including a former New Hampshire Supreme Court justice, who sought to keep sealed divorce records private were not successful. It does not matter if court records sought are civil or criminal or if the records are sought some time after the final decision. Cases under the right-to-know section of the article have often arisen when newspapers sought and were denied access to records. Newspapers have successfully sought access to sealed divorce records {Petition of Keene Sentinel (1992) 136 N.H. 121); a police investigative file regarding a DWI arrest, providing that a privacy interest would not be violated {Union Leader

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Corporation v. City of Nashua (1996) 141 N.H. 473); and records of the state housing finance authority in the form of an index {Union Leader Corporation v. New Hampshire Housing Finance Authority (1997) 142 N.H. 540). However, the court held that the article did not require the house of representatives to provide tapes of a session of the house to a newspaper for the purposes of stress analysis, because the house session was open to the public, an official journal was prepared, and written transcripts were available. Union Leader Corporation v. Chandler (1979) 119 N.H. 442. [ART.| 9. [NO HEREDITARY OFFICE OR PLACE.] No office or place, whatsoever, in government, shall be hereditary — the abilities and integrity requisite in all, not being transmissible to posterity or relations. Source: 1784. This article is a more concise version of Part 1, Article VI of 1780 Massachusetts Constitution. The article embodies the rejection of the tradition of hereditary offices. This tradition was experienced firsthand in New Hampshire under British rule, and in particular under the Wentworth oligarchy. This article has never been interpreted by the New Hampshire Supreme Court. [ART.] 10. [RIGHT OF REVOLUTION.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind. Source: 1784. The first part of the article is one of the articles of the Bill of Rights that enunciates the general principle of equality which "pervades the entire constitution" and prohibits the discrimination of one citizen over another. State v. Pennoyer (1889) 65 N.H. 113. However, the article is probably best known for its "right to revolution" stated in the second half of the first sentence and in the second sentence. This article is similar to the 1780 Massachusetts Constitution, Part 1, Article VII. The language beginning "whenever the ends of government are perverted," including the strongly worded last sentence, is the same as part of Article IV of the Declaration of Rights of the Maryland Constitution of 1776.n The principle that government is for the "common benefit" of all was cited by the court when it found that a redevelopment project was instituted for the


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"common benefit. . . of the whole community, and not for the private interest or emolument of any one man, family, or class of men." The court upheld a law which allowed the taking by eminent domain of nonblighted property as part of a redevelopment project. Velishkav. City of Nashua (1954) 99 N.H. 161. Many of the cases decided under the article concern its equal protection guarantee. In 1873, the court cited Article 10's hostility "to the creation of discriminating and unreasonable privileges and immunities." Delancey v. Insurance Co. (1873) 52 N.H. 581. In an 1880 case concerning taxation of railroad express companies, a tax law was found unconstitutional because it provided for unequal division of public expense. State v. US. & Canada Express Co. (1880) 60 N.H. 219. In Opinion of the Justices (1933) 86 N.H. 597, the court read Article 10 together with articles 1, 12, and 14 of the Bill of Rights, in finding that the principle of equality demanded that legal remedies must be available to everyone. A proposed law was found to violate this article because it set different standards of access to the courts for employers of labor than for other litigants by denying employers certain equitable relief in court. Another violation of the article was found in Rosenblum v. Griffin (1938) 89 N.H. 314. A law that required proof of security or insurance for the registration of a motor vehicle on which a lien existed was held to be an arbitrary classification in violation of the article. In Rosenblum, the court held that the principle of equality applies to a granted privilege, such as a driver's license, as well as to a regulated right. The article also has been cited by the court to prohibit the use of public funds to support utilities which would have transmitted electric energy not needed for local use beyond the state. A proposed law that included a state pledge to guarantee bonds to be used for the construction of a hydro-electric dam violated the article because local power needs were already adequately served. Opinion of the Justices (1937) 88 N.H. 484. The second part of the article is the so-called "right of revolution." This was an expression of the political philosophy from the time the colony of New Hampshire became the state of New Hampshire. It put into the constitution the common law against excessive exercise of power as well as against its usurpation. Trustees of Phillips Exeter Academy v. Exeter (1940) 90 N.H. 472. This right of revolution, however, is quite limited. Its use to violently overthrow government cannot be justified when "peaceful and orderly changes, properly reflecting the will of the people, may be accomplished through the existing structure of government." Nelson v. Wyman (1954) 99 N.H. 33. This provision has been cited in unsuccessful attempts to justify resistance against the government during the McCarthy era and to attack procedures for voting on a city budget. In a case which involved an investigation by the attorney general under a law outlawing subversive activities, Article 10's right to "reform the old, or establish a new government" did not preclude the legislature from proscribing activities looking to the overthrow of government by force or violence. The right to resist and to reform government exists only

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when "the ends of government" are "perverted, . . .public liberty manifestly endangered, and all other means of redress . . . ineffectual." Nelson v. Wyman (1954) 99 N.H. 33. The argument that the ends of government were perverted by allowing a city council to vote on the city budget, instead of the voters of the city, was also unsuccessful. The supreme court found that prohibiting voter ratification of a city's budget hardly "perverts" the ends of government or manifestly endangers public liberty, so long as the city's voters retain the right to elect their local representatives. The persons challenging the procedure also had not "exhausted all other means of legal redress." The voters of the city retained the right to change the city charter to a town form of government, which would have allowed voters to vote directly on the budget. City of Claremont v. Craigue (1992) 135 N.H. 528. Included in the so-called right of revolution, is the people's right to alter the state's government. The supreme court has affirmed the state's right to alter its form of government in Trustees of Phillips Exeter Academy v. Exeter (1940) 90 N.H. 472. The legislature cannot enact laws of permanently binding force, because if it were allowed to do so, then the state's right to alter its form of government would suffer. [ART.] 11. [ELECTIONS AND ELECTIVE FRANCHISES.] All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile. No person shall have the right to vote under the constitution of this state who has been convicted of treason, bribery or any willful violation of the election laws of this state or of the United States; but the supreme court may, on notice to the attorney general, restore the privilege to vote to any person who may have forfeited it by conviction of such offenses. The general court shall provide by law for voting by qualified voters who at the time of the biennial or state elections, or of the primary elections therefor, or of city elections, or of town elections by official ballot, are absent from the city or town of which they are inhabitants, or who by reason of physical disability are unable to vote in person, in the choice of any officer or officers to be elected or upon any question submitted at such election. Voting registration and polling places shall be easily accessible to all persons including disabled and elderly persons who are otherwise qualified to vote in the choice of any officer or officers to be elected or upon any question submitted at such election. The right to vote shall not be denied to any person because of the non-payment of any tax. Every inhabitant of the state, having the proper qualifications, has equal right to be elected into office. Source: 1784. Amended in 1903, 1912, 1942, 1956, 1968, 1976, and 1984. This article describes a number of rights relating to voting and elections.


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The 1784 version of this article was based on the 1780 Massachusetts Constitution, Part 1, Article IX. This important article on voting rights has been frequently amended and expanded over the years. Article 11 started out in the 1784 constitution as a brief statement that elections were to be free and that every inhabitant of the state with proper qualifications had the right to vote or be elected to office. Over the years, the article has been amended eight times, including two separate amendments that were adopted in 1968. In 1903, the article was amended to add a literacy test for voting and holding office. Voters and office holders were required to be able to write and to read the constitution in the English language. Persons with physical disabilities and persons 60 years old or older as of January 1904 were excepted from this requirement. This provision remained in the constitution until 1976. The literacy requirement was obsolete in light of the congressional suspension of all literacy tests in 1970 (an amendment to the Voting Rights Act of 1965), made permanent in 1975. In 1912, a sentence was added which prohibited any person from voting or being eligible for office who had been convicted of treason, bribery, or willful violation to the election laws, although the supreme court had the ability to restore such privileges. In 1942, a provision was added to allow absentee voting in biennial or state elections and city elections. The absentee voting right was expanded in 1956 to also apply to primary elections. Two separate amendments to article 11 were adopted by the voters in 1968. One amendment added the second-to-last sentence to the article, which stated that no person could be denied the right to vote because of nonpayment of taxes. The other amendment removed a provision regarding persons being able to vote who were 60 years old on January 1, 1904, which was obsolete because it could only have applied to persons over 120 years old. The amendment adopted in 1976 specified that the minimum voting age was 18, to be consistent with the Twenty-Sixth Amendment to the federal constitution, ratified in 1971. The most recent amendment to this article dates from 1984. This amendment added a sentence requiring that all voters, including the elderly and disabled, have accessibility to all registration and polling places. Right to Vote and Be Elected to Office The fundamental purpose of this article is to describe who has the right to vote and who has the right to be elected to office. These rights are coextensive, so that the qualifications for voting are the same as the qualifications for elective office, unless otherwise provided by the constitution.12 The court held in 1927 that when the Nineteenth Amendment of the United States Constitution gave women the right to vote in 1920, women also were given the right to hold elective office. Opinion of the Justices (1927) 83 N.H. 589.

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The qualifications for voting and being elected to office, as set by this article, are that the minimum age is 18, and that the person must be an inhabitant of the state and not have a previous conviction for treason, bribery, or willful violation of state or federal election laws. The rights under this article are not absolute, because the legislature has the authority to subject the elective franchise to reasonable regulation. Wilkes v. Jackson (1958) 101 N.H. 420. In discussing the state constitutional foundation for the one person/one vote standard, the New Hampshire Supreme Court held that this article guarantees that each citizen's vote will have equal weight. Below v. Gardner (2002) 148 N.H. 1 (redistricting of senate); Burling v. Chandler (2002) 148 N.H. 143 (redistricting of house of representatives). In Below and Burling, the court held that the then current system of redistricting failed to meet constitutional standards. Further discussion of these cases may be found under Part 2, Article 26 for the senate and Article 9 for the house. Technical irregularities cannot be used to deny the right to vote. The court has held that statutes regulating the form of ballots should not be applied to disenfranchise voters because of technical irregularities. Opinion of the Justices (1974) 114 N.H. 711. However, the use of unapproved stickers on a ballot in 1977 was in clear violation of a state statute and, thus, not a minor deviation or technical irregularity. The attempt to vote by use of an unapproved sticker on the ballot was invalid, even though voters' intent was clear, because a voter's choice must be legally expressed. Kibbe v. Town of Milton (1997) 142 N.H. 288. Voting in an election means casting a direct vote. Signing a nomination petition is not a direct vote, so the signing of nomination petitions by individuals who also voted in the state primary did not constitute illegal "double voting." Sununu v. Ballot Law Commission

(1982) 122 N.H. 852.

In 1979, the legislature's right to deny felons the right to be candidates for or elected to office was upheld in Paey v. Rodrigue (1979) 119 N.H. 186. Article 11 provides a limited list of felonies, for which conviction automatically disqualifies a person from voting, but the felony in Paey was not one of these. In Paey, a town selectman was barred from holding office under the felony disqualification statute. The selectman was convicted of the felony of interstate transportation of stolen merchandise and conspiracy and served time in a "jail type institution" for only 40 days of his three-year sentence, and then was placed on probation. Although he had served only 40 days of a three-year sentence, the disqualification was proper because his disqualification for felony conviction was based on the possible sentence, and not the sentence actually imposed. An interesting challenge was made to the felon disenfranchisement statutes in 2000, based on an amendment to Article 11 made in 1976. The plaintiff, a prisoner incarcerated in the state prison for the felonies of attempted first-degree assault and witness tampering, argued that the felon disenfranchisement statutes were unconstitutional because the only constitutional restrictions on who could vote under Article 11 were age and domicile and conviction for the enumerated offenses of treason, bribery, or willful violation of the election laws. Before Article 11 was amended in 1976, the first sentence of the article had remained


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the same since 1784 and gave "every inhabitant of the State, having the proper qualifications, [the] equal right to elect and be elected into office." Thus, the legislature had the authority to determine proper qualifications for persons voting or being elected into office, subject to any requirement in the constitution. The amendment of 1976 restructured the article and removed the "proper qualifications" language from the voting provision and retained it only in the new, final sentence granting inhabitants an equal right to run for elective office. The supreme court found that the constitutional convention of 1974 which proposed the amendment had not intended to make the substantive change to Article 11, which would have eliminated the historic authority of the legislature to define voter qualifications beyond those listed in Article 11. The constitutional amendment on voting rights, as presented to the voters in 1976, involved changes to or repeal of seven different articles. In the question stated to the voters, there was no mention of taking away legislative authority to define voter qualifications. The court found that, because the people were never given notice that the amendment of the 1974 convention had any effect on the legislature's authority to determine voter qualification, the amendment was never effective. Fischer v. Governor (2000) 145 N.H. 28. Violation of Election Laws Several cases have interpreted what the phrase "willful violation of election laws" in the third sentence means. Usually the cases have been concerned with challenges to the election of a person who has been charged or convicted of some technical violation of campaign laws. Hugh Gregg, a successful gubernatorial candidate in the 1952 Republican primary, had made a report of his campaign receipts and expenditures, as required by law, which contained some inaccuracies. This was not a "willful violation" of the state election laws so as to disqualify Gregg from nomination, because he had made an honest and reasonable effort to comply with the provisions of the statute requiring the reporting of campaign expenses. Daniell v. Gregg (1952) 97 N.H. 452. A violation of election laws may contain a penalty without containing the element of criminal intent. State v. Sullivan (1958) 101 N.H. 429. Another technical violation which did not amount to a "willful violation" occurred when a candidate for state senate posted a small number of posters which were unsigned and had been purchased for a former primary campaign in 1962 which did not comply with the law requiring that they bear the name and address of the candidate or the candidate's fiscal agent. Only a small portion of the candidate's total political advertising at the primary election failed by inadvertence to comply with the statute. Lavoie v. Tufts (1964) 106 N.H. 13. Absentee Voting The history of absentee voting in New Hampshire began in the Civil War period. In 1863 a proposed bill was found unconstitutional which would have

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allowed a soldier to mark a ballot and send it to a person holding a power of attorney, who would then cast the ballot for him. Opinion of the Justices (1863) 44 N.H. 633. This was found to violate the requirement that voting must be done in person. In 1864, the legislature passed a law, which did pass constitutional muster, which allowed qualified voters in the military service to vote for certain federal offices (president, vice-president, representative in Congress) in the places where they were located instead of at their homes. These soldiers voted in person, then, and not as absentees, at specially provided polling places. The 1863 case was cited as authority in 1921 when the court found a proposed act unconstitutional which would have allowed persons absent or who had a physical disability which prevented them from coming to the polls to vote at biennial elections by absentee ballot. Opinion of the Justices (1921) 80 N.H. 595. The proposed law was modeled after a Massachusetts statute which had been enacted after an amendment to the Massachusetts Constitution to allow for absentee voting. The court found that the legislature did not have the power to pass an act for absentee voting in the absence of an express amendment to the constitution allowing for it. In spite of this ruling, the legislature passed an absentee voting act in 1925.13 In 1930 and 1938, constitutional amendments allowing absentee voting were defeated at the polls. The act of 1925 was presumably ratified in 1942 by the constitutional amendment allowing for absentee voting in general elections.14 Voter Access to Polls and Registration Places Voter accessibility requirements for elderly and disabled persons were added to this article in 1984, the same year that Part 1, Article 28-a relating to state funding of mandated programs was adopted. In an attorney general's opinion to the executive director of the Governor's Commission for the Handicapped in 1986, the attorney general stated that Article 28-a did not relieve local officials of the obligation to provide accessible voting and registration places.15 The state action in Article 28-a refers to acts of legislation, and a requirement that is a provision of the constitution is an expression of the will of the sovereign people. [ART.] 12. [PROTECTION AND TAXATION RECIPROCAL.] Every member of the community has a right to be protected by it, in the enjoyment of his life, liberty, and property; he is therefore bound to contribute his share in the expense of such protection, and to yield his personal service when necessary. But no part of a man's property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. Nor are the inhabitants of this state controllable by any other laws than those to which they, or their representative body, have given their consent. Source: 1784. Amended 1964.


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This article states the reciprocal obligations of the social contract, reiterates the principle of equal protection, protects against the taking of property without compensation, and requires that people can only be controlled by laws to which they, or their representative body, have consented. The original version of this article was closely based on Part 1, Article X of the 1780 Massachusetts Constitution. The article has been amended only once, in 1964, along with Article 13, to remove a reference to the ability to pay "an equivalent" instead of yielding necessary personal service. This reference to buying one's way out of military service had long been obsolete, although the practice was used during the Civil War to allow a draftee to avoid military service by paying a sum of money fixed by the Secretary of War or presenting a substitute. This article, along with Articles 1, 2, 6, 10, and 14 of the Bill of Rights, states the guarantee of equal protection. Article 12 is frequently cited in conjunction with Part 1, Article 2 as guaranteeing equal rights under the New Hampshire Constitution. See the discussion under Article 2 concerning the equal rights provisions of the New Hampshire Constitution. Reciprocal Obligations of the Social Contract The philosophy for the use of taxation as a means of supporting the reciprocal social contract was stated in an early New Hampshire Supreme Court case. In 1829 the court stated that the share of the expense of protection furnished by the state to an individual is that individual's proportionate share of the entire expense, measured according to the amount of the individual's taxable estate. Opinion of the Justices (1829) 4 N.H. 565. This fundamental principle has become much more sophisticated in its application, but the basic idea still stands. A person is required to pay only his just share of taxes. Rollins v. City of Dover (1945) 93 N.H. 448). This article and Part 2, Article 5 together establish that equality and justice are the basis of all constitutional taxation. Smith v. New Hampshire Department of Revenue Administration (1997) 141 N.H. 681. A tax is confiscatory to the extent it is a disproportionate, unequal assessment. Rollins v. City of Dover (1945) 93 N.H. 448. Tax exemptions must be reasonable and uniform under this article and Part 2, Article 5. The legislature may not create two classes of taxpayers paying differing rates of tax on essentially the same class of property. A proposed amendment to the exemptions of the business profits tax was found unconstitutional in Opinion of the Justices (1989) 131 N.H. 640, because it impermissibly classified taxpayers. A person may be required to pay his share of the expense of government, which generally occurs through taxation, but may also be required to "yield his personal service" in exchange for society's protection and benefits. The yielding of one's personal service relates not only to military service, but also to the duty to participate in the administration of justice by appearing in obedience to a subpoena. Boston & Maine Railroad v. State (1910) 75 N.H. 513.

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No Taking Without Compensation Article 12's articulation of the right that no one's property can be taken without compensation goes back as far as the Magna Carta. The New Hampshire Supreme Court has held that the protection under the Fifth and Fourteenth Amendments to the United States Constitution against a taking without compensation is not greater than the protection offered under the state constitution. Sanderson v. Town ofCandia (2001) 146 N.H. 598. The court has long held that property rights include the right to use and enjoy a thing and are not limited to possessing it. Eaton v. Boston, Concord, & Montreal Railroad (1872) 51 N.H. 504. If an owner does not consent to a taking, the representative body of the people may consent by making just compensation. Ash v. Cummings (1872) 50 N.H. 591. Private property can be taken by eminent domain only for public uses, not for private uses, but the power to take private property for public use may be exercised by the government through the means of a private corporation. Concord Railroad v. Greely (1845) 17 N.H. 47. If the social costs exceed the probable benefits, then the project cannot be said to be built for a public use. Merrill v. City of Manchester (1985) 127 N.H. 234. A compensable taking may be accomplished in different ways. For example, it may be in accordance with eminent domain laws or as an unintended result of a zoning ordinance. There are many examples of what may be taken by eminent domain. It has been held in this state that the use of land for each of the following purposes is a public use: a private toll road open to the public {In re Petition of Mt. Washington Road Co. (1857) 35 N.H. 134); a toll bridge {Proprietors of the Piscataqua Bridge v. New Hampshire Bridge (1834) 7 N.H. 35); a public highway {Peirce v. Somersworth (1839) 10 N.H. 369); a railroad {Concord Railroad v. Greely (1845) 17 N.H. 47); a public cemetery {Crowell v. Londonderry (1884) 63 N.H. 42); and an electric company {Rockingham County Light & Power Co. v. Hobbs (1904) 72 N.H. 531). Zoning is an exercise of the police power of the state and its subdivisions. This article acts as a check on municipal zoning power regulating land use and prohibits the arbitrary exercise of that power by protecting the fundamental right to use, possess, enjoy, and dispose of one's property. There are, however, limitations on the uses of one's property. A landowner cannot use his or her property so as to injure others {Smith v. Town of Wolfeboro (1992) 136 N.H. 337) or defy duly enacted legislative commands {Dederick v. Smith (1936) 88 N.H. 63). Zoning ordinances were upheld in Quirk v. Town of New Boston (1995) 140 N.H. 124 and Asselin v. Town of Conway (1993) 137 N.H. 368, and found unconstitutional in Burrows v. City of Keene (1981) 121 N.H. 590 and Metzger v. Town of Brentwood (1977) 117 N.H. 497. This article also protects the "grandfathering" in of preexisting, nonconforming uses subsequent to enactment of a zoning ordinance {Town of Hampton v. Brust (1982) 122 N.H. 463), as long as the use is not a nuisance or harmful to the public health {Cohen v. Town of Henniker (1991) 134 N.H. 425).


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An unconstitutional taking was found by the court in Thomas Tool Services, Inc. v. Town ofCroydon (2000) 145 N.H. 218. In this case, the state law on the alternative tax lien procedure was found to be unconstitutional. Thomas Tool Services had failed to pay its property taxes, and the town had acquired the property under the tax lien procedure tax sale for only $370.26, while the taxpayer had originally paid at least $65,000. The surplus gained by the town was an unduly harsh penalty for the delinquent taxpayer. Consent to be Governed The final sentence of the article requires that people can only be controlled by laws to which they, or their representative body, have given their consent. A particular legislature cannot enact laws of permanently binding force, because this would infringe on the sovereignty of the people. Trustees of Phillips Exeter Academy v. Exeter (1940) 90 N.H. 472. |ART.| 13. [CONSCIENTIOUS OBJECTORS NOT COMPELLED TO BEAR ARMS.] No person, who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto. Source: 1784. Amended 1964. This article prohibits compelling a conscientious objector to bear arms. The article was amended in 1964, along with Article 12, to remove a reference in the 1784 version to paying an equivalent, if a person was excused from military service as a conscientious objector. The original language of the article is not found in the 1780 Massachusetts Constitution, but is almost identical to part of Article VIII of the Pennsylvania 1776 Constitution's Declaration of Rights. The Pennsylvania Declaration of Rights was used extensively by the drafters of the Massachusetts Constitution of 1780, although this particular provision was not included in the Massachusetts version.16 There have been no cases interpreting this article. Presumably the test applied would be the same as that applied by United States Supreme Court in United States v. Seeger (1965) 380 U.S. 163 (test for conscientious objector is whether individual's belief occupies a parallel place to that filled by the "orthodox belief in God of one who clearly qualifies for the exemption") cited in Appeal of Emissaries of the Divine Light (1995) 140 N.H. 552, even though Seeger would not be binding on the state because it deals with an interpretation of a federal statute. [ART.] 14. [LEGAL REMEDIES TO BE FREE, COMPLETE, AND PROMPT.] Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property,

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The New Hampshire State Constitution or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws. Source: 1784.

The article has three basic purposes: to make civil remedies readily available without discrimination, to allow people to obtain justice without having to pay for it, and to give criminal defendants the right to a speedy trial. The origins of this article, closely based on the 1780 Massachusetts Constitution, Part 1, Article XI, go back to the Magna Carta. State v. Basinow (1977) 117 N.H. 176. Civil Remedies to be Readily Available Without Discrimination The first part of the article states the equal protection rights of all similarly situated civil litigants in court. Such litigants have the right to appeal to the courts for relief and defense under the same conditions. Opinion of the Justices (Limitation on Civil Actions) (1993) 137 N.H. 260. The purpose of the article is to make civil remedies readily available and to guard against arbitrary infringement on the right of access to the courts. Estate of Cargill v. City of Rochester (1979) 119 N.H. 661. This is an equal protection right, but it is relative and must be balanced against the need for the practical administration of justice. McLellan v. Cavanaugh (1985) 127 N.H. 33. The article does not prohibit all limitations or, in some circumstances, even a complete bar on access to the courts. Several cases have interpreted which limitations meet the constitutional standard and which do not. There is no fundamental right to recover for one's injuries, but the right to recover has been found by the court important enough to apply the middle-tier standard of review. Under this standard, the test applied by the court is whether classifications made by the legislature which restrict recovery are reasonable and based on a difference which has a fair and substantial relation to the object of the legislation. City of Dover v. Imperial Casualty & Indemnity Co. (1990) 133 N.H. 109. Examples of cases in which a challenged classification was found to be constitutional include Estate of Cargill v. City of Rochester (1979) 119 N.H. 661 (statute limiting tort recovery from governmental units to $50,000 for bodily injuries served legislative goal of defining the liability to which governmental units would be exposed) and Opinion of the Justices (Limitation on Civil Actions) (1993) 137 N.H. 260 (proposed legislation that delayed the filing of a civil action by a defendant in a criminal sexual assault action against the victim of the alleged sexual assault during the pendency of the criminal action, when the defendant's case was based upon certain statements or reports made by the victim). Examples of challenged classifications found to be unconstitutional include City of Dover v. Imperial Casualty & Indemnity Co. (1990) 133 N.H. 109 (statute that gave complete immunity to municipalities for certain actions in


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negligence was unconstitutional because it impermissibly denied parties injured on municipal highways and sidewalks a right to recover) and Trovato v. Deveau (1999) 143 N.H. 523 (distinction was unconstitutional in wrongful death statute that imposed a cap on predeath damages when decedent's death was causally related to the injury, but no cap when decedent's death was unrelated to the injury). In State v. Brosseau (1983) 124 N.H. 184, the doctrine of sovereign immunity was found unconstitutional under this article, to the extent it prevented an injured person from receiving a just remedy. In this case, developmentally impaired individuals at the Laconia State School or their estates sued the state because there was a statutory limitation placed on their right to recover. A workers' compensation statute may satisfy the guaranteed remedy provision if the statute provides a quid pro quo or an adequate substitute for the statutory or common law rights extinguished under the workers' compensation law. Petition of Abbott (1995) 139 N.H. 412. The quid pro quo doctrine applied in Abbott even though there was less than a complete bar to recovery; in workers' compensation cases such as Abbott, there is less than a complete bar to recovery, because recovery is allowed under the workers' compensation statute, if not at common law. To justify the complete abolition of the right of any class of persons to recover, there must be a satisfactory substitute for the right. Petition of Abbott (1995) 139 N.H. 412. A statute that gave landowners immunity, even for their willful and malicious conduct, from suit brought by users of off-highway recreation vehicles (OHRVs) on a landowner's property was constitutional because the limitation of liability had a fair and substantial relation to the legislative purpose of making more land available for OHRV use. This was not an arbitrary and therefore unconstitutional classification which denied OHRV users a remedy without a substitute because the limitation on liability had a fair and substantial relation to the legislative goal of making of more land available for OHRV use. Lorette v. Peter-Sam Investment Properties (1997) 142 N.H. 207. A person suffering an injury may also be completely barred from recovering for injuries because of another's negligence, when there is a compelling public policy reason. Such a reason was found by the court in Welzenbach v. Powers (1995) 139 N.H. 688, a case in which a father unsuccessfully sued the mother of his child born out of wedlock because she had assured him she was using contraception. Obtaining Justice without Having to Pay The object of the right "to obtain right and justice freely, without being obliged to purchase it" is to prevent bribery or the appearance of bribery in the judicial system. Avoiding the appearance of bribery is as important as avoiding actual bribery. Christy & Terrier v. Witte (1985) 126 N.H. 702.

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The long-standing practice of probate court judges' special session fees was challenged in 1986. Probate court judges received a salary from the state, but also received compensation for hearing cases on days when the court was not in a regularly scheduled session. The court found that a law which required payment of special session fees to the probate court smacked of the purchase of justice and was unconstitutional. In re Estate ofDionne (1986) 128 N.H. 682. The type of fee the article is meant to prohibit is a fee paid to expedite or delay the administration of justice, not ordinary court filing fees. An $8 filing fee required for an appeal from a conviction for a parking violation, when the defendant was not indigent, did not violate the article. State v. Basinow (1977) 117 N.H. 176. However, a superior court rule which required a defendant found guilty of a misdemeanor in a district or municipal court to pay an $8 fee to appeal to the superior court for a de novo jury trial was found to violate the prohibition against the purchase of justice. Because the right to a jury trial was fundamental to the state's system of criminal justice, the state could not require even a nominal fee for purchase of a jury trial. State v. Cushing (1979) 119 N.H. 147. Right to Speedy Trial In 1978 the New Hampshire Supreme Court adopted the four-factor balancing test of Barker v. Wingo (1972) 407 U.S. 514, namely, length of delay, reasons for the delay, defendant's assertion of his speedy trial rights, and prejudice suffered by the defendant, in order to determine whether a defendant's right to a speedy trial has been violated. State v. Cole (1978) 118 N.H. 829. The court has stated that the federal constitution afforded a defendant no greater protection as to his right to a speedy trial than the New Hampshire Constitution. State v. Barnaby (1995) 139 N.H. 420. The right to a speedy trial means the right of a person charged with a crime to be free from capricious and oppressive delay in receiving a trial. There is no mechanical rule for determining whether the right to a speedy trial has been violated, because the right is relative and considered with regard to the practical administration of justice. McLellan v. Cavanaugh (1985) 127 N.H. 33. The time clock begins to run at the time of arrest, and not at the time of a later indictment. Although there is no specific amount of time between arrest and trial which would qualify as a clear violation of the right to a speedy trial, the court has found that a delay of over two years between the date of indictment and the date of trial was presumptively prejudicial {State v. Stow (1993) 136 N.H. 598), whereas a ten-month delay was not presumed automatically prejudicial {State v. Isaac (1979)119 N.H. 971). The article guarantees a speedy trial, but not a speedy indictment. In 1980 the supreme court developed the "rule of State v. Hastings" which required the state to bring an indictment against an accused within 60 days from the date of arrest, or show that a delay beyond that time was reasonable. State v. Hastings (1980) 120 N.H. 454. The court overruled Hastings in State v. Hughes (1992) 135 N.H.


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413, holding that violation of the rule of State v. Hastings was not an automatic violation of the right to a speedy trial. The court recognized that "new procedural protections" alleviated the court's concern that an accused might be subjected to lengthy incarceration without a showing of probable cause. Meaning of Phrase "Conformably to the Laws" The phrase at the end of the article, "conformably to the laws," has been interpreted to mean that the remedies must conform to the rules of statutory and common law applicable at the time the injury was sustained. Sous a v. State (1975) 115 N.H. 340. [ART.] 15. |RIGHT OF ACCUSED.] No subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse or furnish evidence against himself. Every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defense, by himself, and counsel. No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land; provided that, in any proceeding to commit a person acquitted of a criminal charge by reason of insanity, due process shall require that clear and convincing evidence that the person is potentially dangerous to himself or to others and that the person suffers from a mental disorder must be established. Every person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the state if need is shown; this right he is at liberty to waive, but only after the matter has been thoroughly explained by the court. Source: 1784. Amended 1966 and 1984. The article presents an array of rights protecting a criminal defendant, as well as protecting any person from the deprivation of property without due process of law. Most of the cases decided under this article are concerned with due process rights of criminal defendants. The article as adopted in 1784 was based on the 1780 Massachusetts Constitution, Part 1, Article XII. The language of the article from 1784 remains intact, but there have been two additions. In 1966 the article was amended to provide for the right to counsel at state expense, if need is shown. In 1984, a proviso was added reducing the legal requirement of proof beyond a reasonable doubt to clear and convincing evidence in criminal insanity commitment hearings.

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Indictment (Lawful Accusation by Grand Jury) Must Be Adequate in Order to Protect against Double Jeopardy The court has long recognized that this article of the constitution requires that an indictment must give a full and fair description of the offense charged. State v. Silverman (1912) 76 N.H. 309. The reasons that a defendant must be informed with sufficient definiteness of the crime charged is to allow the defendant to prepare for trial {State v. Rouston (1929) 84 N.H. 140), and to prevent later prosecution of the same offense {State v. O'Neill (1963) 105 N.H. 15). The court has defined a sufficient indictment as one that gives the defendant enough information to prepare for trial by setting forth all the elements of an offense {State v. Taylor (1981) 121 N.H. 489), and that is identified by well-pleaded facts {State v. Therrien (1987) 129 N.H. 765). It is generally sufficient to describe a statutory crime in the words of the statute. State v. Goodwin (1958) 101 N.H. 252. An indictment may not be duplicitous, that is, charge more than one offense in one count of an indictment, as this would not adequately inform the defendant of the charge he must meet. State v. Wright (1985) 126 N.H. 643. Privilege against Self-Incrimination This principle of the common law of England and America has been part of the New Hampshire Constitution since 1784. The Fifth Amendment of the federal constitution also provides a guarantee against self-incrimination, and was made applicable to the states in Malloy v. Hogan (1964) 378 U.S. 1. The scope of the right against self-incrimination under Article 15 is similar in scope to that of the Fifth Amendment to the United States Constitution. State v. Cormier (1985)127N.H. 253. The basic guarantee, that no one can be forced to testify as to one's own criminality, applies not only in the case of a criminal trial where the person is the defendant, but also in a trial involving others. No one can be required to make admissions tending to prove that person's guilt for any crime with which the person might later be charged. State v. Nowell (1878) 58 N.H. 314. The privilege applies only to evidence of a testimonial character, the type of evidence that a witness would by traditional judicial processes be required to give. It does not apply to evidence obtained from fingerprinting, speaking for identification, or introducing evidence in court of a person's refusal to provide a sample for chemical testing. State v. Cormier (1985) 127 N.H. 253. The article may be invoked by a witness as well as a defendant. Witnesses are protected under Article 15 and the Fifth Amendment of the United States Constitution when an injurious disclosure could result. State v. Wheeler (1986) 128 N.H. 767. The privilege, which is personal {State v. Cote (1948) 95 N.H. 108), applies not only to answers that would support a conviction but also to any information that would supply a link in the chain of evidence needed to prosecute {Key Bank v. Latshaw (1993) 137 N.H. 665).


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Waiver of Privilege The traditional test to show a waiver is that it must be shown there was an intentional waiver or relinquishment. State v. Benoit (1985) 126 N.H. 6. Before statements made by a defendant during custodial interrogation may be considered as evidence, the state must prove beyond a reasonable doubt {State v. Phinney (1977) 117 N.H. 145) that the defendant was informed of his or her constitutional rights {State v. Nash (1979) 119 N.H. 728), that the defendant waived those rights {State v. Butler (1977) 117 N.H. 888), and that the statements were made voluntarily, knowingly and intelligently {State v. Berube (1983) 123 N.H. 771). The requirement that the state prove a confession or a waiver of Miranda rights voluntary beyond a reasonable doubt is a higher level of proof than the preponderance of the evidence standard required under the federal constitution. State v. Laurie (1992) 135 N.H. 438; State v. Monroe (1998) 142 N.H. 857). Right to Produce All Favorable Proofs The New Hampshire Supreme Court has held that the New Hampshire Constitution is at least as protective as the Sixth Amendment to the federal constitution with reference to the right to produce all favorable proofs. State v. Graf'(1998) 143 N.H. 294. A defendant has the right to produce all favorable proofs, but not to demand the introduction of evidence against the rules of evidence {State v. Newcomb (1995) 140 N.H. 72) or evidence that confuses the issues or confounds the jury {State v. Woodsum (1993) 137 N.H. 198). The defendant may compel witnesses to appear at trial, but cannot compel their testimony. State v. Taylor (1978) 118 N.H. 859. If a witness's right against self-incrimination conflicts with a defendant's right to produce all favorable proofs, the court must balance the interests. State v. Lavallee (1979) 119 N.H. 207. A prosecutor is required to provide a defendant with any evidence in the possession of the prosecutor which is favorable to the accused where the evidence is material either to guilt or to punishment. State v. Dedrick (1992) 135 N.H. 502. The right under Article 15 to produce all favorable proofs gives a criminal defendant more protection than the federal standard because the standard for prosecutorial disclosure under the New Hampshire Constitution is higher than under the federal constitution. The New Hampshire Constitution requires that if a defendant shows that favorable, exculpatory evidence has been knowingly withheld by the prosecution, the burden shifts to the state to prove beyond a reasonable doubt that the undisclosed evidence would not have affected the verdict. State v. Laurie (1995) 139 N.H. 325.

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Right to Public Trial There is no specific right to a public trial in Article 15, but that right is now recognized as existing under both Article 15 and the Sixth and Fourteenth Amendments of the United States Constitution. The Sixth Amendment right to a public trial was made applicable to the states in Duncan v. Louisiana (1968) 391 U.S. 145. In 1977 the New Hampshire Supreme Court cited the due process requirements of Article 15 as protecting the right to a public trial, although no specific public trial right existed in the state constitution. Martineau v. Helgemoe (1977) 117 N.H. 841. The right to a public trial is now a well-recognized right under Article 15. State v. Weber (1993) 137 N.H. 193; State v. Cote (1999) 143 N.H. 368. The New Hampshire Supreme Court has found that the federal constitution provides no greater protection in this area than the state constitution {State v. Cote (1999) 143 N.H. 368). In order to determine whether a defendant's right to public trial has been violated, the test in New Hampshire is the federal constitutional analysis adopted in State v. Guajardo (1992) 135 N.H. 401. This analysis applies a four-part test. A defendant's public trial right is not violated upon closure of a proceeding as long as: (1) the party seeking to close the courtroom advances an overriding interest that is likely to be prejudiced; (2) the closure is no broader than necessary to protect that interest; (3) the trial court considers reasonable alternatives to closing the proceeding; and (4) the trial court makes adequate findings supporting the closure. The public trial issue has arisen several times when defendants accused of sexual assault of a minor victim have claimed their right to a public trial has been violated when the courtroom was closed during the testimony of the minor victim. When a conflict exists between a defendant's right to a public trial and the state's interest in protecting a victim's physical and psychological wellbeing, the court must balance these interests on a case-by-case basis. A statute that required the defendant to show good cause why the victim's testimony should be heard in open court was unconstitutional insofar as it placed the burden on the defendant, in violation of the defendant's right to a public trial under both the state constitution and the United States Constitution's Sixth Amendment. State v. Weber (1993) 137 N.H. 193. The statute, RSA 632-A:8, was enacted in 1979 and has never been amended. When a minor victim is involved, the court may consider the victim's age and psychological maturity, the nature of the crime, the desires of the victim, and the interests of parents and relatives. State v. Guajardo (1992) 135 N.H. 401. The issue of open judicial proceedings has also been decided in the context of a preliminary hearing involving access of the press. Keene Publishing Corp. v. Keene District Court (1977) 117 N.H. 959 and Keene Publishing Corp. v. Cheshire County Superior Court (1979) 119 N.H. 710. The burden is on the party moving for closure to demonstrate that there is a clear and present danger to the fairness of the trial, the necessity of such an order for closure, and the lack of effectiveness of alternative procedures.


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A defendant may waive the right to a public trial. Martineau v. Helgemoe (1977) 117 N.H. 841. Right of Confrontation, Cross-Examination Right to confront witness is ancient and fundamental, although it is not absolute. State v. Christensen (1992) 135 N.H. 583. The right is also found in the United States Constitution's Sixth Amendment, which the New Hampshire Supreme Court has found offers no greater protection than the protection under the state constitution. State v. Dixon (1999) 144 N.H. 273. The right to confront witnesses encompasses the fundamental right to crossexamine witnesses to impeach their credibility. State v. LaClair (1981) 121 N.H. 743. The opportunity to impeach a witness's credibility through crossexamination is an incident of rights guaranteed by this article. State v. Roberts (1993) 136 N.H. 731. Cross-examination is necessary to ensure that the defendant "shall have a right to produce all proofs that may be favorable to himself, to meet the witnesses against him face to face, and be fully heard in his defense." State v. Ramos (1981) 121 N.H. 863. However, there are situations in which the right is not absolute. A rape shield law that barred admission into evidence of prior sexual activity of rape victims was held constitutional in State v. Howard (1981) 121 N.H. 53. The due process rights of the defendant were protected under this law, because the defendant was given an opportunity to demonstrate that the probative value of the statutorily inadmissible evidence in the context of that particular case outweighed its prejudicial effect on the prosecutrix. Under this article, the state was allowed to proceed by offer of proof in a pretrial detention hearing, without producing all the witnesses supplying the information at the basis of its offer of proof, as long as the state supplied a witness capable of being effectively cross-examined. State v. Poulicakos (1989) 131 N.H. 709. The court has also held this principle to apply in juvenile certification hearings. In re Eduardo L. (1993) 136 N.H. 678. A violation of Article 15 was found in State v. Christensen (1992) 135 N.H. 583, which dealt with a statute requiring a defendant charged with selling drugs to demonstrate "specific grounds" for objection to admission of a certificate of chemical analysis in order to question the analyst at trial who prepared it. The court found that this requirement violated the defendant's right to confront witnesses, because it created a "catch-22" for the defendant. The defendant could not develop the specific grounds required under the statute to require the analyst's presence at trial without first confronting and questioning the analyst. Right to Be Present at Trial The defendant's right to be present at trial derives from the specific rights to produce all favorable proofs, to confront witnesses, and to be fully heard in

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one's defense, as well as the right to due process, guaranteed by this article. State v. Castle (1986) 128 N.H. 649. Even where a defendant is not confronting witnesses or evidence against him, the due process clause guarantees the right to be present at the trial to the extent that a fair and just hearing would be thwarted by the defendant's absence. A defendant was denied his right under Article 15 to be present at all stages of his trial, where a judge held ex parte discussions with a juror off the record concerning possible bias on the part of the juror, and subsequently refused defense counsel's request for a discharge of the juror or a voir dire of the juror in the presence of counsel. State v. Castle (1986) 128 N.H. 649. It is permissible, except in first-degree and capital murder cases, for the trial court to hold discussions with individual jurors, on the record, outside the hearing of counsel, and then communicate the substance of the discussion to counsel. State v. Bailey (1985) 127 N.H. 416. A record of the discussion must be kept, even if the defendant does not request it {State v. Brodowski (1991) 135 N.H. 197), and provided to the defendant. Failure to notify a defendant of the discussion is an error of the same magnitude as failing to record the discussion. It is reversible error unless the state can prove the error was harmless beyond a reasonable doubt. State v. Hannan (1993) 137 N.H. 612. Right to Be Tried by Fair and Impartial Jury The right to trial by jury has its roots in the Magna Carta, and guarantees the right of trial by jury in all cases where the right existed at common law in this state when the constitution took effect in 1784. State v. Ray (1885) 63 N.H. 406 and Opinion of the Justices (DWI Jury Trials) (1992) 135 N.H. 538. The New Hampshire Supreme Court has held that the state constitutional right to a fair and impartial jury provides at least as much protection as the federal constitution. State v. Wier (1994) 138 N.H. 671. All criminal defendants have a right to a jury trial {State v. Gerry (1896) 68 N.H. 495), in those cases in which a right to jury trial existed when the constitution was adopted in 1784 {State v. Morrill (1983) 123 N.H. 707). The right to a jury trial means the defendant's right to a jury of 12 who arrive at a unanimous verdict, although the parties may agree to proceed with fewer than 12 jurors, if a juror is disqualified. State v. Dushame (1992) 136 N.H. 309. Criminal defendants have the right to a jury trial either in the first instance or upon appeal to the superior court, whenever there is the possibility of incarceration. Therefore, the legislature could not pass a law that eliminated the right to a jury trial for a second offense DWI charge that provided for a six months' sentence of imprisonment. Opinion of the Justices (DWI Jury Trials) (1992) 135N.H. 538. A fine cannot be levied under the criminal code, the amount of which equals or exceeds the amount in controversy which entitles a civil litigant to a jury trial, without giving the person fined the right to a jury trial on appeal. State v. Morrill (1983)123 N.H. 707.


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No particular manner of selection of the jury is guaranteed, as long as the jury selected is impartial. State v. Wilson (1869) 48 N.H. 398. The impartiality of jurors is first determined by the trial court during voir dire. State v. Gullick (1980) 120 N.H. 99. Any discussions between the judge and a member of the venire must be recorded. State v. Brodowski (1991) 135 N.H. 197. A fair trial does not require that a juror come into the trial with no information or impression of the nature of the case, as long as the juror can put aside his or her impression or opinion and render a verdict based on the evidence presented in court. State v. Laaman (1974) 114 N.H. 794. Pretrial publicity can cause actual or inherent prejudice. State v. Laaman (1974) 114 N.H. 794. Inherent prejudice exists when the publicity by its nature has so tainted the trial atmosphere that it will necessarily result in lack of due process. A claim of inherent prejudice does not require the defendant to show actual, identifiable prejudice. It is the adverse nature of the publicity, not merely its quantity, that is critical in finding presumptive prejudice. Evidence did not support claim of presumptive prejudice where defendant's jury was selected after thorough and intensive questioning by court and counsel for both sides over five days and defendant did not use all preemptory challenges allowed. State v. Smart (1993) 136 N.H. 639. "Law of the Land" Means Due Process of Law This article guarantees anyone facing potential deprivation of liberty due process of law. In re Gamble (1978) 118 N.H. 771. The phrase "the law of the land" means that process warranted by law {Hutchins v. Edson (1817) 1 N.H. 139), or due process of law {Petition of Harvey (1967) 108 N.H. 196). Due process means that a person's liberty and other rights protected by the article cannot be taken away by unfair government action. The federal constitution also contains a due process clause. In the federal constitution, the Fifth Amendment applies to actions by the federal government, and the Fourteenth Amendment protects persons in state actions. The New Hampshire Supreme Court has held in several contexts that the protections of the due process clause under the New Hampshire Constitution are at least as protective as those under the United States Constitution {Bragg v. New Hampshire Director of Motor Vehicles (1997) 141 N.H. 677; State v. Hoag (2000) 145 N.H. 47). A person's life, liberty, or property cannot be taken away by the government unless the actions of the government are in compliance with procedural due process standards of fairness and justice. Many of the basic components of substantive due process for a person accused of a crime are spelled out in the article, such as the right to confront one's accusers, the right to a public trial, and the right against self-incrimination.

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Protection from Deprivation of Property and Interests Outside the Criminal Law Context In addition to providing various due process protections for a person accused of committing a crime, this article protects an individual from being "deprived of his property . . . or . . . liberty" without due process of law. Protected property and liberty interests may be manifested in many different ways. In cases decided by the New Hampshire Supreme Court, protected property interests have included an interest in practicing one's profession {Appeal of Trotzer (1998) 143 N.H. 64) and a claim of entitlement to unemployment compensation benefits {Appeal of Eno (1985) 126 N.H. 650). Due process considerations were also implicated in a proceeding for reimbursement of expenses incurred in the care of children in need of services, because of the potential deprivation of property rights. City of Claremont v. Truell (1985) 126 N.H. 30. Liberty interests include the liberty not to be committed against one's will in an involuntary civil commitment {In re Gamble (1978) 118 N.H. 771), the right to be free from compulsory medication {Opinion of the Justices (1983) 123 N.H. 554), and the ability to continue to work in an occupation generally open to similarly educated or experienced individuals {Petition of Preisendorfer (1998) 143 N.H. 50). Once a protected property or liberty interest is found, the governmental proceedings potentially affecting the interest must comport with due process, after taking into account the interests of the state and the public. "Due process" may involve various concepts of fairness and justice, such as meaningful notice {City ofClaremont v. Truell (1985) 126 N.H. 30), impartial proceedings {Appeal of Trotzer (1998) 143 N.H. 64), or adequate procedural protections on appeal from a civil commitment {In re Richard A. (2001) 146 N.H. 295). Due process violations have been found by the court in Petition of Preisendorfer (1998) 143 N.H. 50 (due process required preponderance of the evidence standard in any hearing to determine whether an individual's name should be added to the central registry), Royer v. Department of Employment Security (1978) 118 N.H. 673 (termination of unemployment benefits before notice and hearing), First NH Bank v. Town of Windham (1994) 138 N.H. 319 (lack of notice to mortgagee bank of the extermination of its rights in a property prior to the issuance of tax deeds), and City of Claremont v. Truell (1985) 126 N.H. 30 (parents of a child found to be in need of services were not given notice that they could be held liable for the expenses incurred, until after the dispositional hearing ordering the placement of the child). No due process violations were found in Appeal of Trotzer (1998) 143 N.H. 64 (no showing of actual bias in administrative hearing), In re Scott L. (1983) 124 N.H. 327 (recording of prehearing psychiatric examination not required in every case) and In re Estate of McQuesten (1990) 133 N.H. 420 (probate court's failure to appoint a guardian ad litem to represent the financial interests of two children being adopted not a denial of due process; no property interest was taken at the time of adoption, when the children's right to inherit from a natural


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parent was replaced with the right to inherit from an adoptive stepparent, because the right to inherit has no immediate value). Burden on Defendant to Prove Insanity Reasoning that sanity should be in the nature of a policy presumption because it is inherent in human nature and is the natural and normal condition of mankind, the court in Novosel v. Helgemoe (1978) 118 N.H. 115 found that a statute placing the burden on a defendant to prove insanity did not violate Article 15. Helgemoe overruled earlier case law that required the state to prove, beyond a reasonable doubt, the defendant's sanity as an element of a crime. After the Helgemoe decision and prior to 1987, defendants were only required to prove insanity by a preponderance of the evidence. In 1987 the legislature, concerned that it was too easy for defendants to meet the burden of proving their insanity, increased the required burden of proof from a preponderance of the evidence standard to clear and convincing evidence.17 The statute was tested in State v. Blair (1999) 143 N.H. 669. The court found that requiring a defendant to prove insanity by clear and convincing evidence did not violate Article 15. Standard of Proof in Criminal Insanity Commitment and Involuntary Civil Commitment Proceedings Between 1976 and 1988, the standard of proof requirements for criminal insanity and involuntary civil commitment proceedings underwent fundamental change. In Gibbs v. Helgemoe (1976) 116 N.H. 825, the court held that Article 15 required the state to prove, beyond a reasonable doubt, that the mental condition of a person convicted of a crime who was found not guilty by reason of insanity was such that it would be dangerous for him to be at large. In reaction to Gibbs, the legislature passed a law in 197718 that attempted to set the standard of proof required in a criminal insanity commitment proceeding as clear and convincing evidence instead of beyond a reasonable doubt. A year later, the 1977 law was found to be in violation of Article 15 in State v. Gregoire (1978) 118 N.H. 140. In order to change the burden of proof, a constitutional amendment was required, and this is what the legislature proposed and the voters adopted in 1984. In 1988, the court reexamined its holding in Proctor v. Butler (1977) 117 N.H. 927 that imposed a reasonable doubt burden of proof in civil commitment cases. In re Sanborn (1988) 130 N.H. 430. Noting the close resemblance between civilly filed commitment petitions and insanity verdicts in criminal cases, the court in Sanborn overruled Proctor insofar as Proctor imposed a reasonable doubt burden of proof on the petitioner in a civil commitment proceeding. Sanborn made the standard for involuntary civil commitment the same as the standard in a criminal insanity proceeding: the

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petitioner's burden of proof under the civil commitment statute is that of clear and convincing evidence. However, persons subject to civil commitment are not entitled to the same level of due process in every area as individuals subject to incarceration for criminal wrongdoing, even though the private interests at stake in civil commitment proceedings, loss of liberty and social stigmatization, are substantial and parallel to the interests at stake in the criminal context. In re Scott L. (1983) 124 N.H. 327. In re Richard A. (2001) 146 N.H. 295 set procedures to be followed for an indigent respondent that differ from those required for a criminal defendant, when the respondent desires to appeal an involuntary commitment, and counsel for the respondent believes that the respondent's appeal is frivolous. Right to Counsel The right to counsel is a fundamental right, necessary for a fair trial. The right to counsel for an indigent person was guaranteed under the federal constitution in Gideon v. Wainwright (1963) 372 U.S. 335. In 1966, before the amendment to the New Hampshire Constitution was adopted providing that any person who might be deprived of liberty if convicted in a criminal case was entitled to counsel, it was not clear how far the guarantee of right to counsel under the federal constitution went. New Hampshire had a law that provided a lawyer at public expense for indigent people who were accused of a crime more serious than a "petty offense," which was an offense punishable by not over six months in jail. The amendment to Article 15 guaranteed the right to an attorney for people who could not afford an attorney, no matter how short the period of imprisonment might be. The New Hampshire Supreme Court has noted that the right to counsel provided by the 1966 amendment covers "a broader range of criminal defendants than are granted a right to counsel by the sixth and fourteenth amendments" to the United States Constitution {State v. Scarborough (1983) 124 N.H. 363) and that it provides at least as much protection as the federal constitution {State v. Drewry (1995) 139 N.H. 678). The right to counsel means the right to effective assistance of counsel. In order to be effective, defense counsel must perform with "within the range of competence required of attorneys representing defendants in criminal cases." State v. Staples {\9S\) 121 N.H. 959. [ART.] 16. [FORMER JEOPARDY; JURY TRIAL IN CAPITAL CASES.] No subject shall be liable to be tried, after an acquittal, for the same crime or offense. Nor shall the legislature make any law that shall subject any person to a capital punishment, (excepting for the government of the army and navy, and the militia in actual service) without trial by jury. Source: 1784.


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The purpose of this article is to limit the power of government to retry a defendant for the same crime and, except in military cases, to require a jury trial in capital cases. The second sentence of this article is very similar to the 1780 Massachusetts Constitution, Part 1, Article XII (second part). The New Hampshire version deleted a reference to "infamous" as well as "capital" punishment and added a reference to the militia in actual service as an exception. Double jeopardy protection applies in criminal, not civil, cases. Double jeopardy protection applies not only in the case of those crimes prohibited under the state criminal code, but also when a person has been found guilty of criminal contempt and sentenced to incarceration under the court's authority to keep order in the courtroom. State v. Goodnow (1995) 140 N.H. 38. This article protects, as does the Fifth Amendment to the United States Constitution, against multiple prosecutions and multiple punishments for the same offense {State v. Fitzgerald (1993) 137 N.H. 23), although the New Hampshire provision is more protective than the federal provision {State v. Hogg (1978) 118 N.H. 262) (under the New Hampshire Constitution, acquittal in federal court bars prosecution in state court when the charges arose out of the same criminal transaction; under the federal constitution, trial of a defendant in a state court is not barred after an acquittal in federal court, even though both offenses result from the same transaction). This protection applies not only after acquittal, but also after conviction. State v. Constant (1992) 135 N.H. 254. The New Hampshire Supreme Court has long recognized a person's right to protection against double jeopardy. In State v. Sias (1845) 7 N.H. 558, the court held that the rule of former jeopardy afforded no defense unless the facts charged in a second complaint would, if true, have sustained the first. This article does not prevent the threat of twice being punished for the same act, but forbids being twice tried and convicted for the same offense. To determine whether two offenses are the same, the court has applied the "same evidence" test and the "same-in-law-and-fact" test. In the "same evidence" test, the court looks to see if there is a difference in the evidence required to sustain each offense. If there is a difference, the offenses are not the same. State v. Gendron (1922) 80 N.H. 394. In the "same-in-law-and-fact" test, the court decides whether the proof of different elements is required for each offense. The offenses are the same unless each requires proof of a fact that the other does not. State v. Smith (1953) 98 N.H. 149. The retrial of a defendant whose conviction was reversed on appeal is not barred by the protection against double jeopardy, unless the reason the conviction was overturned was insufficiency of the evidence. State v. Marti (2001) 147 N.H. 168. The court has repeatedly rejected adopting the federal "same transaction" test in place of the "same evidence" test. State v. Gosselin (1977) 117 N.H. 115; State v. Houtenbrink (1988) 130 N.H. 385; State v. Goodnow (1995) 140 N.H. 38. The "same evidence" test allows a defendant to be charged with offenses arising from the same transaction under two or more statutes, as long as a

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difference in evidence is required to sustain the offenses charged. The "same transaction" test treats the consequences of the same transaction as one offense for the purposes of double jeopardy, although the consequences may be in violation of more than one criminal statute. Under this test, the prosecution must join all charges against a defendant that grow out of a single criminal transaction. The court in State v. Gosselin (1977) 117 N.H. 115 rejected the "same transaction" test because it found that the New Hampshire criminal court system "with its differences in jurisdiction and lack of unified prosecution" was "ill adapted to compulsory joinder of multiple statutory violations which might arise out of the 'same transaction.' " The protection in this article against double jeopardy incorporates the doctrine of collateral estoppel. Collateral estoppel is a doctrine that bars relitigation of factual issues that have already been determined. Under collateral estoppel, an issue of ultimate fact cannot be relitigated in a future prosecution. State v. Fielders (1983) 124 N.H. 310. One critical question is when in the criminal process the right against double jeopardy attaches. In a jury trial, jeopardy attaches when the trial begins, which is when the jury is empanelled and sworn. State v. King (1988) 131 N.H. 173. The defendant has the right to have his or her trial completed by that jury. State v. Paquin (1995) 140 N.H. 525. In a bench trial, jeopardy attaches when the judge begins to hear evidence. State v. Courtemarche (1998) 142 N.H. 772. Generally, if a trial is terminated because the court grants a defendant's motion for a mistrial, double jeopardy does not bar a second trial on the same charge. However, the guarantee against double jeopardy does apply if the defendant has been goaded by the state into moving for mistrial as the only reasonable means of avoiding becoming a victim of unlawful trial tactics or inadmissible evidence. State v. Montella (1992) 135 N.H. 698. If the court grants a motion for mistrial over the objection of the defendant, the defendant cannot be retried unless there is evidence that the mistrial was based on "manifest necessity," or the ends of public justice would otherwise be defeated. State v. Pugliese (1980) 120 N.H. 728. Several cases have interpreted whether double jeopardy applies in cases of an extended sentence or enhanced sentence. The imposition of an extended sentence based on the victim's age did not violate the protection against double jeopardy where the victim's age had already been used to elevate the offense from a class B to a class A felony. State v. Hennessey (1997) 142 N.H. 149. Double jeopardy did not forbid the imposition of a single enhanced penalty for an underlying offense, even though the underlying offense and the allegations justifying the penalty enhancement were contained in separate indictments containing identical allegations. State v. Elbert (1986) 128 N.H. 210. [ART.] 17. [VENUE OF CRIMINAL PROSECUTIONS.] In criminal prosecutions, the trial of facts, in the vicinity where they happened, is so essential to the security of the life, liberty and estate of the


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citizen, that no crime or offense ought to be tried in any other county or judicial district than that in which it is committed; except in any case in any particular county or judicial district, upon motion by the defendant, and after a finding by the court that a fair and impartial trial cannot be had where the offense may be committed, the court shall direct the trial to a county or judicial district in which a fair and impartial trial can be obtained. Source: 1784. Amended 1792 and 1978.

This article gives a criminal defendant the right to have his or her case tried in the county or judicial district where the crime occurred, except that a defendant may have the location of a trial moved, upon a showing that a fair trial cannot be obtained where the offense was committed. As compared with Part 1, Article XIII of the Massachusetts Constitution of 1780, the New Hampshire Constitution of 1784 made more specific the right to trial in criminal cases in the location where the offense occurred. The Massachusetts Constitution provided only that "[i]n criminal prosecutions, the verification of facts, in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen." This article has been twice amended since 1784. In 1792, it was amended to make a simple technical change, substituting "legislature" for "assembly." It was amended again in 1978. Until 1978, criminal cases had to be tried within the county in which the crime occurred, except in cases of general insurrection. This created a problem when a defendant contended that a fair trial was impossible in the county in which the crime had occurred. In 1978, the article was amended to remove the reference to "general insurrection" and to provide that venue in a criminal case could be changed when a fair trial could not be obtained in the county or judicial district in which the offense was committed. The 1978 Voters' Guide made the convincing point that changes of venue had already been ordered by state and federal courts, in violation of this provision of the state constitution. The 1978 change broadened the concept of venue in a criminal case from only the county to also include a legislatively created judicial district. In 1985, the legislature proposed creating a judicial district which, for the first time, would cross county lines, and the court held that the 1978 amendment to Article 17 allowed the creation of judicial districts comprised of contiguous municipalities in different counties. Opinion of the Justices (1985) 126 N.H. 486. This article has been interpreted by the New Hampshire Supreme Court several times. The court in 1881 commented that this constitutional provision was designed to protect an accused from an unfair trial, by preventing the possibility of sending the accused for trial to a remote county at a distance from the vicinity of the alleged crime and at a place selected by officials who might be hostile to the accused. A defendant, however, had the right to a change of venue whenever a fair and impartial trial could not be had in the county where the crime happened. State v. Albee (1881) 61 N.H. 423.

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When the state proves that a crime occurred in a town in a particular county, this constitutes proof that the crime occurred in that county, and the venue of the trial is properly in that county. State v. Huffman (1992) 136 N.H. 149. In order to obtain a change in venue, a defendant must show that he or she cannot receive a fair and impartial trial in the county or district in which the offense was committed. The court found that the defendant's request for a change in venue was properly refused by the trial court in State v. Sullivan (1981) 121 N.H. 301, because the defendant failed to prove that he could not receive a fair trial in the county in question. In a 1974 case where a defendant claimed he could not receive a fair trial because of media publicity, the court differentiated between inherent prejudice and actual prejudice that might be caused by such publicity. In the case of inherent prejudice, where publicity by its nature has so tainted the trial atmosphere that it will necessarily result in lack of due process, a defendant need not show actual identifiable prejudice to obtain a change in venue. In the case of actual prejudice, when the publicity has infected the jurors to such an extent that the defendant cannot or has not received a fair and impartial jury trial, the defendant must show that the opinions formed by the jurors as a result of the publicity are such that they cannot be set aside by the jurors to enable them to render a verdict based on the evidence presented in court. State v. Laaman (1974) 114 N.H. 794. The article was interpreted in 1850 as not applicable to a preliminary examination by a justice of the peace in a different county from where the offense occurred and was later tried. State v. Thompson (1850) 20 N.H. 250. In 1999, the court decided, on the facts of the particular case, that this article did not apply in a juvenile case where a witness was not certain in which county an offense had occurred. The juvenile defendant was not entitled to have the case against him dismissed. In re Kevin E. (1999) 143 N.H. 417. |ART.| 18. [PENALTIES TO BE PROPORTIONED TO OFFENSES; TRUE DESIGN OF PUNISHMENT.] All penalties ought to be proportioned to the nature of the offense. No wise legislature will affix the same punishment to the crimes of theft, forgery, and the like, which they do to those of murder and treason. Where the same undistinguishing severity is exerted against all offenses, the people are led to forget the real distinction in the crimes themselves, and to commit the most flagrant with as little compunction as they do the lightest offenses. For the same reason a multitude of sanguinary laws is both impolitic and unjust. The true design of all punishments being to reform, not to exterminate mankind. Source: 1784. Amended 1792. This article enunciates the principle that the penalty for a crime should be proportional to the nature of the offense and recognizes rehabilitation as a goal of punishment.


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This is essentially the same article as was adopted in the 1784 constitution. The amendment of 1792 made only minor changes in wording. In order to be found unconstitutional, a sentence must be grossly disproportional to the crime. The court has found in a number of cases that there was no gross disproportionality between the sentence and the crime {State v. Elbert (1984) 125 N.H. 1; State v. Steams (1988) 130 N.H. 475). Incarceration of a sixteen- or seventeen-year-old minor with adult prisoners for a motor vehicle misdemeanor was found not to be unreasonably disproportionate to the offense charged in State v. Deflorio (1986) 128 N.H. 309. A sentence was found to be unconstitutionally disproportionate in State v. Dayutis (1985) 127 N.H. 101. In this case, the sentence of 35 years to life for second-degree murder was greater than that which the defendant would have received for first-degree murder. The court held that the penalty was unconstitutionally disproportionate because the penalty for the lesser offense was more severe than that for the greater offense. The court also noted in Dayutis that Article 18 provides at least as much protection against disproportionate punishment as the Eighth Amendment to the federal constitution. In State v. Fraser (1980) 120 N.H. 117, the defendant received a more severe sentence than his accomplice for the commission of the same crime. The supreme court held that this did not violate this article, because the article does not require that all persons convicted of the same crime must receive the same sentence. Even if the crimes were identical, the defendants may not be. The court has applied the factors to be considered in determining proportionality of a sentence found in Solem v. Helm (1983) 463 U.S. 277, namely, (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. State v. Dayutis (1985) 127 N.H. \0\; State v. Pliskaner (1986) 128 N.H. 486. In 1921, the court stated that the article's language that all punishments must be "proportioned" to the offense was probably merely directory, rather than mandatory. State v. Foster (1921) 80 N.H. 1. In 1978, the court declined to decide whether the language of Article 18's final sentence that "[t]he true design of all punishments being to reform, not to exterminate mankind" was directory or mandatory, but found that the language did not create a right to parole. State v. Farrow (1978) 118 N.H. 296. In 1985 the supreme court examined this final sentence of the article again. A defendant incarcerated at the state prison sought to take college-level courses in order to show "extraordinary progress" and qualify for an earlier suspension of his sentence. The court interpreted the last part of article 18 as best read as a general statement of principle rather than as a mandatory standard which created affirmative rights. The constitution created no substantive right to rehabilitation, although it did place a "constitutional imprimatur" on this goal. State v. Evans (1985) 127 N.H. 501.

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(ART.] 19. (SEARCHES AND SEIZURES REGULATED.] Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. Therefore, all warrants to search suspected places, or arrest a person for examination or trial in prosecutions for criminal matters, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order, in a warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued; but in cases and with the formalities, prescribed by law. Source: 1784. Amended 1792. The basic requirement of this article is that every citizen has the right to be free of unreasonable searches and seizures by the state or an agent of the state. A search or arrest in a criminal matter must be made with a warrant supported by oath or affirmation. A warrant must be issued by a neutral and detached magistrate and contain a specific description of the person to be seized or place to be searched. Although the original intent of the framers of the article may have been to require a formal search warrant for every search, the New Hampshire Supreme Court has not adhered to this strict interpretation and has created limited exceptions to the warrant requirement. State v. Pellicci (1990) 133 N.H. 523. The 1784 version of this article was word-for-word the same as Part 1, Article XIV of the 1780 Massachusetts Constitution. The article was amended in 1792 to change the order of some words, but without a change in the basic meaning. An early case, Hussey v. Davis (1878) 58 N.H. 317, referred to Article 19 as an affirmation of the common law of search warrants. Hussey described the article as being of "extraordinary strictness." The warrant requirement in this article was intended to abolish general warrants and writs of assistance which had been used by the British to conduct sweeping searches based upon generalized suspicions and without specifying the places to be searched or things to be seized. State v. Canelo (1995) 139 N.H. 376. There have been numerous cases decided under this article, especially since 1983, when the New Hampshire Supreme Court recognized a state exclusionary rule {State v. Canelo (1995) 139 N.H. 376, referring to State v. McGann (1983) 124 N.H. 101 and State v. Tapply (1983) 124 N.H. 318) and decided State v. Ball (1983) 124 N.H. 226. Before 1983, there was less of an incentive to challenge the validity of a search because there was no exclusionary rule in New Hampshire under Article 19, although the federal exclusionary rule had been made applicable to state proceedings involving violations of the Fourth Amendment in Mapp v. Ohio (1961) 367 U.S. 643. When there was no exclusionary rule, evidence, as long as it was relevant, could be introduced in a


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criminal case even through it had been obtained by an illegal search. See State v. Mara(1951)96N.H. 463. A search made under Article 19 must be reasonable. An entry without a warrant is per se unreasonable, unless one of a few judicially created exceptions applies {State v. Thorp (1976) 116 N.H. 303) or the person consents to the search {State v. Pinder (1985) 126 N.H. 220). The judicially recognized exceptions to the warrant requirement for search or seizure include "exigent circumstances" that require an officer to take immediate action, plus probable cause {State v. Santana (1991) 133 N.H. 798), a search in unoccupied "open fields" that are located away from a defendant's dwelling {State v. Pinder (1986) 128 N.H. 66), the location of an item in "plain view" {State v. Graca (1998) 142 N.H. 670), use of an administrative search warrant {State v. Turmelle (1989) 132 N.H. 148), a search incident to arrest {State v. Murray (1992) 135 N.H. 369), and an investigatory stop {State v. Brodeur (1985) 126 N.H. 411). The court in State v. Sterndale (1995) 139 N.H. 445 specifically rejected the automobile exception to the search warrant requirement adopted by the United States Supreme Court and declined to apply the "reasonable expectation of privacy" test used in federal court. In State v. Canelo (1995) 139 N.H. 376, the court refused to adopt a state good faith exception to the exclusionary rule. The federal "good faith" exception adopted in United States v. Leon (1984) 468 U.S. 897 allows evidence seized under a constitutionally defective warrant to be used in court, as long as the officers acted in "good faith." Article 19 corresponds to the Fourth Amendment of the federal constitution. The New Hampshire Supreme Court has found that Article 19 provides at least as much and often greater protection for individual rights than its federal counterpart. For example, under Article 19, a defendant is automatically entitled to standing to challenge a search or seizure as unlawful when the defendant is charged with a crime in which possession of any article or thing is an element. State v. Settle (1982) 122 N.H. 214.19 In cases involving the search and seizure of an automobile, a defendant is entitled to "significantly greater protection" against intrusion by the state under the state constitution than under the United States Constitution's Fourth Amendment. State v. Koppel (1985) 127 N.H. 286. In Koppel, a case which involved the validity of a police roadblock set up to find drivers driving under the influence of intoxicating liquor, the court stated, "To justify the search or seizure of a motor vehicle, absent probable cause or even a reasonable suspicion that a criminal offense is being committed, the State must prove that its conduct significantly advances the public interest in a manner that outweighs the accompanying intrusion on individual rights. It must further prove that no less intrusive means are available to accomplish the State's goal." Cases involving motor vehicles in which the court has found a higher level of protection under Article 19 include cases involving the seizure of a hand-rolled cigarette from an automobile, based on mere suspicion {State v. Ball (1983) 124 N.H. 226, departing from Fourth Amendment analysis in Texas v. Brown (1983) 460 U.S. 730), "automatic standing" for a defendant charged with an offense

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arising out of his possession of a motor vehicle to challenge the legality of any search of that motor vehicle {State v. Sidebotham (1984) 124 N.H. 682, rejecting "expectation of privacy" test in United States v. Salvucci (1980) 448 U.S. 83), and opening of a closed container in a police inventory search of an automobile {State v. Finn (2001) 146 N.H. 59). The requirement that a warrant must be supported by "oath or affirmation" means that the magistrate who issues the warrant must find that it is supported by probable cause. State v. Daniel (1997) 142 N.H. 54. The court has long held that probable cause exists if a person of ordinary caution would justifiably believe that what is sought will be found through the search and will aid in a particular apprehension or conviction. State v. Doe (1975) 115 N.H. 682. Examples of cases where probable cause was found include State v. Daniel (1997) 142 N.H. 54 and State v. Cannuli (1998) 143 N.H. 149. Examples of cases where probable cause was not found include State v. Silvestri (1992) 136 N.H. 522 and State v. Berthiaume (1983) 124 N.H. 264. If an informant is the source of the information for the warrant, the court will apply a "totality of the circumstances" test when testing the validity of the warrant. State v. Hazen (1988) 131 N.H. 196. The magistrate issuing the warrant must be neutral and detached. State v. Canelo (1995) 139 N.H. 376. The court has found that a magistrate was not "neutral and detached" when the magistrate relied on prior actions taken by a grand jury instead of making an independent determination of probable cause {State v. Kellenbeck (1984) 124 N.H. 760) and when the magistrate allowed a search warrant to be issued at a future time, dependent upon events, the occurrence of which was unsupported by the affidavit in support of the warrant application {State v. Canelo (1995) 139 N.H. 376). A search conducted by public school officials must also be reasonable under this article, but public school officials have greater flexibility than law enforcement officers in conducting searches for contraband. In State v. Tinkham (1998) 143 N.H. 73 and State v. Drake (1995) 139 N.H. 662, the court upheld searches by school officials. The article does not apply to searches made by private parties. State v. Patch (1997) 142 N.H. 453. (ART.] 20. [JURY TRIAL IN CIVIL CAUSES.] In all controversies concerning property, and in all suits between two or more persons except those in which another practice is and has been customary and except those in which the value in controversy does not exceed $1,500 and no title to real estate is involved, the parties have a right to a trial by jury. This method of procedure shall be held sacred, unless, in cases arising on the high seas and in cases ["cases" appears in 1792 parchment copy of constitution; the constitution of 1784 used "causes"] relating to mariners' wages, the legislature shall think it necessary hereafter to alter it. Source: 1784. Amended 1877, 1960, and 1988.


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This article guarantees a litigant the right to a civil jury trial, except when the dollar amount in controversy is $1,500 or less or the title to real estate is involved. The 1784 version of this article was taken almost verbatim from Part 1, Article XV of the 1780 Massachusetts Constitution. As the article originally stood, there was no exception to the right to jury trial based on the dollar amount in controversy. In 1877 the article was amended to allow a jury trial only if the amount in controversy exceeded $100 and no title to real estate was involved. In 1918 and 1930, conventions considered but did not adopt proposals to increase the $100 amount. In 1956, an amendment was proposed by the 1956 convention to preserve the right to trial by jury in which the value in controversy exceeded $500. The question was adopted by the necessary two-thirds of the voters but invalidated by the court {Concrete, Inc. v. Rheaume Builders (1957) 101 N.H. 59) because the question was not properly worded. The convention reconvened in 1959 and reworded the question. In 1960, the voters adopted the reworded question, requiring that the amount in controversy must exceed $500. As time went by, the problem of backlog in the courts increased, and people had to wait longer and longer for a jury trial. In 1976, the voters rejected an attempt to increase the $500 to $3,000. In 1984, the voters rejected an increase in the $500 amount to $5,000, in spite of strong urging by proponents of the change that it was needed to reduce the backlog in superior court cases. The report of the Constitutional and Statutory Revision Committee in 1985 stated that the Judicial Council had informed the Committee that delays of one year were "almost universal" and delays of two to three years occurred in some counties.20 In 1986, the jury trial amount in controversy question was placed on the ballot again, this time by the 1985 legislature. The legislature tried a different approach, and proposed an amendment that would have allowed the amount in controversy to be determined by law. This was also rejected by the voters. An amendment was finally approved in 1988, requiring that the amount in controversy must exceed $1,500. The right to a jury trial has been long regarded by New Hampshire citizens as basic and fundamental. Copp v. Henniker (1875) 55 N.H. 179. This article confirms and guarantees the right to a jury of one's peers in civil cases. Jury trials in criminal cases punishable by the death penalty are guaranteed under Article 16 of the Bill of Rights. Article 15 of the Bill of Rights guarantees that no person shall be deprived of his liberty except by the judgment of his peers or the law of the land. The article has been interpreted to extend the right to a jury trial to all cases for which the right existed when the constitution was adopted in 1784, but not for special, statutory, or summary proceedings unknown to the common law. Opinion of the Justices (SLAPP Suit Procedure) (1994) 138 N.H. 445. For example, rights arising under the Unemployment Compensation Act were strictly statutory, and provided no right to a jury trial. Pomponio v. State (1965)

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106 N.H. 273. A plaintiff who seeks equitable relief is not entitled to a jury trial. Dion v. Cheshire Mills (1943) 92 N.H. 414. The court will examine the nature of the case and the relief sought in order to determine if the right to jury trial applies. Daley v. Kennett (1910) 75 N.H. 536.The right to jury trial cannot be denied on the basis of the complexity of the case. Murphy & Sons v. Peters (1948) 95 N.H. 275. In a jury trial, the jury determines factual issues in the case. In 1994, the court rejected a proposed bill before the legislature which would have provided for the dismissal of an action identified as a "strategic lawsuit against public participation" unless the plaintiff could show a probability that the plaintiff would prevail on the claim. The court held that the procedure in the bill would violate a plaintiffs right to a jury trial, because the plaintiff would lose his or her right to have a jury determine factual issues in the lawsuit. Opinion of the Justices (SLAPP Suit Procedure) (1994) 138 N.H. 445. The legislature may require that certain cases, such as disputes before the department of labor {ICS Communications v. Fitch (2000) 145 N.H. 433), must first be adjudicated by an administrative agency, as long as there is a "relatively unfettered" right of appeal to a court where a jury trial may be had. Copp v. Henniker (IS75) 55 N.H. 179. The right to a jury trial is subject to reasonable procedural regulation, so when a party fails to follow a court rule requiring that a party make a timely demand for a jury trial, the party waives the right. Nassif Realty Corp. v. National Fire Insurance Co. (1966) 107 N.H. 267. However, the waiver of this important right cannot be inferred or presumed. Jones v. Chase (1970) 110 N.H. 406. If pleadings are amended, any waiver of the right to jury trial applies only to the issues formed at the time of the waiver. Lucas v. Cate (1954) 99 N.H. 134. In determining the amount in controversy, the court has found that the amount includes penalty assessments added to a civil penalty. State v. Corson (1991) 134 N.H. 430. Separate civil penalties which, in the aggregate, exceed the amount in controversy do not entitle a person to a jury trial, as long as a single civil penalty does not exceed the amount in controversy requirement. Town of Henniker v. Homo (1992) 136 N.H. 88. [ART.] 21. [JURORS; COMPENSATION.] In order to reap the fullest advantage of the inestimable privilege of the trial by jury, great care ought to be taken, that none but qualified persons should be appointed to serve; and such ought to be fully compensated for their travel, time and attendance. Source: 1784. The principle points in this article are that only qualified persons should serve as jurors because of the importance of the "sacred right" to a jury trial and that jurors ought to be properly compensated. Article 21 has been cited only rarely. In 1922 the court, in a case in which the impartiality of a juror was called into question, cited this article in conjunction


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with Article 35 of the Bill of Rights relating to the need for impartial judges. State v. Rheaume (1922) 80 N.H. 319. In 1889, the court, in a discussion of the history of the right to trial by jury, referred to "the inestimable privilege of trial by jury." Connecticut River Lumber Co. v. Olcott Falls Co. (1889) 65 N.H. 290. No cases have interpreted the provision relating to juror compensation, although laws providing for compensation of jurors have been a part of the New Hampshire laws since at least 1791.21 [ART.] 22. [FREE SPEECH; LIBERTY OF THE PRESS.] Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved. Source: 1784. Amended in 1968. This article guarantees both freedom of speech and liberty of the press. The 1784 version of this article was very similar to Part 1, Article XVI of the 1780 Massachusetts Constitution. The New Hampshire version placed a higher emphasis on the liberty of the press, demanding that it be "inviolably preserved" as opposed to "not . . . restrained," although "inviolably preserved" does not mean the rights are absolute. In 1968, the article was amended to add the reference to free speech. The committee recommending the resolution amending this article stated that the right to free speech was already in the federal constitution, but the committee recommended spelling it out clearly in the state constitution.22 The right to freedom of speech had been included in John Adams' draft of the 1780 Massachusetts Constitution, but was taken out by the Massachusetts convention, although it was reinstated at a later date.23 The Voters' Guide in 1968 stated that the reference to free speech had been left out of the 1784 state constitution "due to an historic error of omission made in 1783." The right to free speech for government employees has been recognized by the New Hampshire Supreme Court as having at least as much protection under the state constitution as under the First Amendment to the federal constitution. Appeal of Booker (1995) 139 N.H. 337. The right to free speech under this article is not an absolute right, but may be reasonably regulated as to time, place, and manner. Regulations of free speech must be "content-neutral, narrowly serve a significant governmental interest, and allow other opportunities for expression." State v. Comley (1988) 130 N.H. 688. In spite of the requirement that regulations be "content-neutral" as stated in Comley, the content regulation of speech in the context of commercial speech could have passed constitutional muster in Opinion of the Justices (1981) 121 N.H. 542, if the language had been narrowly enough drawn. In that case, the court found a proposed law, intended to curb the use of drug paraphernalia, went too far because it included a ban on advertising that would have promoted "in part" the sale of drug paraphernalia. This language was broad enough to apply to speech entitled to constitutional protection, and, thus, was unconstitutional.

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Another proposed law, prohibiting the harassment of hunters, trappers, and fishermen, also was found to be overbroad and in violation of Article 22 because it prohibited not only speech likely to interfere with lawful activity or to provoke breaches of the peace, but also mere expressions of a particular point of view raising no such risks. Opinion of the Justices (1986) 128 N.H. 46. In re Petition of Brooks (1996) 140 N.H. 813 deals with content regulation under the First Amendment to the United States Constitution. Although this case was not decided under Article 22, it seems likely that the standard articulated in Brooks could also apply to content regulation under Article 22. Brooks states that a content-based regulation must serve a compelling state interest and be narrowly drawn to accomplish that interest or fall into one of a few narrowly defined categories of expression not meriting full protection (obscenity, defamation, and "fighting words" as cited in R.A. V. v. St. Paul (1992) 505 U.S. 377). Two cases interpreting the disorderly conduct law illustrate the court's application of the article's free speech guarantee. In State v. Nickerson (1980) 120 N.H. 821, a part of the disorderly conduct law which allowed the police to arrest a person for refusing to comply with a lawful order of the police to move from a public place was found to be unconstitutionally overbroad. In Nickerson, persons demonstrating against nuclear power were ordered to move from a traffic island and were arrested when they failed to comply. The court found that the statute was overbroad because it gave the police too much discretion when ordering people to leave a public place. Under a more narrowly drawn statute or order, the police could have ensured the safe flow of traffic and protected the rights of the demonstrators to peacefully express their views. The legislature responded by amending the statute in 1983. In State v. Comley (1988) 130 N.H. 688, the disorderly conduct law was challenged by a person found guilty of disorderly conduct because he disrupted a governor's inaugural ceremonies by running down the aisle of Representatives Hall while shouting antinuclear power statements. The court held in this case that the application of the disorderly conduct law was not in conflict with the constitutional guarantee of free speech in Article 22 because the law was only a reasonable regulation of time, place, and manner of conduct, which could incidentally regulate speech. A municipality may require a license for a parade or procession on a public way, as long as there is no discrimination in the treatment of applications {State v. Harvey (1967) 108 N.H. 139), and may regulate adult book stores {Dover News, Inc. v. City of Dover (1977) 117 N.H. 1066). The press has a state constitutional right, though not unlimited, to gather news. There is a presumption, also to be found in Part 1, Article 8, in favor of open judicial proceedings and unsealed court records. The limitations of the liberty of the press have been tested in cases involving news reporters. The court has held that this article provides a qualified privilege for reporters in civil cases. In criminal cases, the reporter's privilege is more tenuous because an individual citizen's rights must also be protected. State v. Siel (1982) 122


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N.H. 254. The standard the court applies in determining when a criminal defendant may overcome a press privilege to withhold a confidential source of news was stated in the Siel case. A defendant must show (1) that he has attempted unsuccessfully to obtain the information by all reasonable alternatives; (2) that the information would not be irrelevant to his defense; and (3) that, by a balance of the probabilities, there is a reasonable possibility that the information sought as evidence would affect the verdict in his case. The defendant in Siel did not overcome the privilege. In a civil context, the guarantee under this article of freedom of the press prevented the governor and council from calling a reporter as a witness in a statutory procedure brought to remove from office the state director of probation. The reporter had interviewed probation employees and written an article containing statements critical of the director, and the governor and council would have asked him to disclose his sources of information. The court held that the New Hampshire Constitution clearly tied a free press to a free state, and that news gathering was an integral part of the process of an unimpeded and uncensored flow of reporting. Opinion of the Justices (1977) 117 N.H. 386. The court adopted standards to govern closure of pretrial criminal hearings in Keene Publishing Corp. v. Keene District Court (1977) 117 N.H. 959. Preliminary hearings, including a hearing on a motion to suppress, may be closed to the public or press only if dissemination of information from the proceedings would create a "clear and present danger" to the defendant's right to a fair trial and if the prejudicial effect of such information could not be avoided by any reasonable alternative to closure. In Keene Publishing Corp. v. Cheshire County Superior Court (1979) 119 N.H. 710, the issue was whether or not a court's order was a prior restraint on the freedom of the press. The order required the newspaper's counsel to be present during a pretrial evidentiary hearing and advise his client about what could be published so the publication would not require the court to change venue or consider "alternative actions." The court held that the order was an implied "gag" order and that it improperly required the newspaper's counsel to act as a censor. |ART.| 23. |RETROSPECTIVE LAWS PROHIBITED.] Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offenses. Source: 1784. This article prohibits ex post facto laws in criminal cases and the retrospective application of laws in civil cases. This article, unchanged since 1784, contains the same idea with different wording as Part 1, Article XXIV of the 1780 Massachusetts Constitution. Both articles used the words "unjust" and "oppressive" in reference to retrospective laws.

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The general principles of this article have been affirmed in New Hampshire case law since the earliest reported New Hampshire decisions, including Merrill v. Sherburne (1818) 1 N.H. 199 and Woart v. Winnick (1826) 3 N.H. 473. The underlying policy of this article is to prevent the legislature from interfering with the expectations of persons as to the legal significance of their actions taken prior to the enactment of a law. State v. Vashaw (1973) 113 N.H. 636. It is fundamental to the rule of law that acts that are the basis for criminal liability cannot be specified ex post facto, that is, after the acts are committed. State v. Akers (1979) 119 N.H. 161. The protection under this article applies to individuals and not to the state or its subdivisions. Hodge v. Manchester (1920) 79 N.H. 437. This article applies to two distinct situations, namely, ex post facto laws in criminal cases and the retrospective application of laws in civil cases. Woart v. Winnick (1826) 3 N.H. 473. The application of the article to the "punishment of offenses" has not changed significantly since Woart, while its application to civil cases has undergone continual development. State v. Ballou (1984) 125 N.H. 304 (Souter, dissent). Ex Post Facto Laws Prohibited It is fundamental to the rule of law and due process that acts or omissions which are to be the basis of criminal liability must be specified in advance and not ex post facto. State v. Akers (1979) 119 N.H. 161. This means that a person cannot be punished for an act which was not criminal at the time it was committed or be subjected to a greater punishment for it. State v. Breest (1976) 116 N.H. 734. A law in mitigation of punishment is not an illegal retrospective law. A statute that allowed the annulment of a crime could be applied to convictions dating from both before and after the enactment of the statute. Doe v. State (1974) 114 N.H. 714. The application of an amendment to a law limiting when prisoners could petition for sentence suspension was found to violate the prohibition against ex post facto laws in State v. Reynolds (1994) 138 N.H. 519. The amended law did not exist when the defendant committed the crime for which she was sentenced and inflicted a greater punishment on her by potentially extending her period in prison. However, in another case decided the same year, State v. Costello (1994) 138 N.H. 587, a defendant unsuccessfully challenged a requirement to register as a sexual offender as an unconstitutional ex post facto application of a law. The registration statute had been enacted after the defendant was convicted of the offense on the basis of which he was required to register. The registration requirement was held by the court to be regulatory in nature and not to inflict a greater punishment for the offense.


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Protection of Vested Rights in Civil Matters The general rule is that, in civil matters, a retrospective law is a law that takes away or impairs vested rights acquired under existing laws, or that creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. State v. Vashaw (1973) 113 N.H. 636. In the civil sphere, the rule has evolved over time to mean that a retrospective law is not absolutely unconstitutional, but may be applied if some public benefit can be shown to outweigh the injury said to flow from retrospective application. State v. Ballou (1984) 125 N.H. 304 (Souter, dissent). Substantive, vested rights must be affected before a violation will be found. Laws that affect procedural requirements do not present a violation of this article. In Eldridge v. Eldridge (1993) 136 N.H. 611, a law established new procedures under which parties could seek modification of a child support order, and did not affect the defendant's obligation to support his children. The provision against retrospective laws in this article also does not apply to statutes that affect a remedy only, provided they do not do so in a way that is injurious, oppressive, or unjust. A statute allowing a tenant to appeal to the superior court a district court's decision concerning the tenant's possessory rights was found by the court to be remedial, and not in violation of this article, even though the actions that determined the substantive rights took place before the effective date of the statute. Smith v. Sampson (1974) 114 N.H. 638. A statute enacted when a case has been commenced but not decided may apply to the case if the statute is remedial or procedural in nature. Gelinas v. Mackey (1983)123 N.H. 690. This article has frequently been interpreted in the context of tax assessments. It has been found to prohibit the retroactive taxation of utility franchises {Opinion of the Justices (1983) 123 N.H. 349) and the creation of a new tax obligation in respect to transactions already past {Cagan's, Inc. v. New Hampshire Department of Revenue Administration (1985) 126 N.H. 239. In Cagan's, Inc., the court distinguished its decision from the holding in Estate of Kennett v. State (1975) 115 N.H. 50. In Kennett, a law taxing business profits enacted on April 22, 1970, and applicable to gross profits earned since January 1, 1970, was found not so highly injurious, oppressive and unjust as to violate this article. The Cagan's, Inc. court reasoned that in Kennett there was a clear legislative intent to apply the statute to income earned before the law's effective date and that the decision noted the practical necessity and justification for the retroactive application of the law. This article, along with Article 1, Section 10 of the United States Constitution, offers protection where a law impairs a contract, or where a law abrogates an earlier statute that was itself a contract. Opinion of the Justices (Furlough) (1992) 135 N.H. 625. The court found a violation of this article and the contract clause of the United States Constitution in a bill that would have required state employees to take unpaid leave. The bill would have substantially impaired state officials' contractual rights found in the collective bargaining agreement between the state and certain classified employees.

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|ART.| 24. (MILITIA.l A well regulated militia is the proper, natural, and sure defense, of a state. Source: 1784. This article states the purpose of the state militia. The state militia now consists of the New Hampshire National Guard, the state guard, and the unorganized militia.24 This article contains wording similar to wording in the Second Amendment to the United States Constitution which was adopted in 1791, referring to a "well regulated militia" being necessary to the security of a free state. The legislature frequently enacted legislation regulating the militia in the late eighteenth and nineteenth centuries. This article has not been interpreted by the New Hampshire Supreme Court. ]ART.] 25. [STANDING ARMIES.] Standing armies are dangerous to liberty, and ought not to be raised, or kept up, without the consent of the legislature. Source: 1784. This article expresses the idea that it is essential that there be legislative consent for any "standing army." It is based on Part 1, Article XVII of the Massachusetts Constitution of 1780, Part 1, Article XVII. This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 26. (MILITARY SUBJECT TO CIVIL POWER.] In all cases, and at all times, the military ought to be under strict subordination to, and governed by, the civil power. Source: 1784. This article states the principle that the military is subordinate to the civil power. This article was based on the last part of Part 1, Article XVII of the 1780 Massachusetts Constitution. This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 27. [QUARTERING OF SOLDIERS.] No soldier in time of peace, shall be quartered in any house, without the consent of the owner; and in time of war, such quarters ought not to be made but by the civil authorities in a manner ordained by the legislature. Source: 1784. Amended 1980. This article limits the authority of government to require its citizens to accommodate soldiers. In peacetime, the owner must consent. At time of war, the legislature would have to regulate the manner in which it was done.


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The 1784 version of this article was almost identical to the Massachusetts Constitution of 1780, Part 1, Article XXVII. In 1980, the language was updated by changing a reference to "magistrates" to "authorities." This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 28. (TAXES, BY WHOM LEVIED.] No subsidy, charge, tax, impost, or duty, shall be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature, or authority derived from that body. Source: 1784. This article states the principle of "no taxation without representation." The early case of Mack v. Jones (1850) 21 N.H. 393 interpreted this article to mean that the power of taxation is an attribute of sovereignty belonging to the people; and this power, so far as it has been granted at all, has been delegated under the New Hampshire Constitution to the legislature. Thus, no property can be taxed by any subdivision of the state in the absence of legislative authorization. Town of Canaan v. Enfield Village Fire District (1908) 74 N.H. 517. The legislature may provide for the exemption of certain classes of property or may exempt it by omitting it in the description of property required to be taxed. Brewster v. Hough (1839) 10 N.H. 138. A recent interpretation of this article clarifies the meaning of "without the consent of the people, or their representatives in the legislature." In 1999 the senate considered a bill that would have allowed the people, in a binding referendum, rather than the legislature, to decide on a tax plan to resolve the education funding crisis. In 1997, the New Hampshire Supreme Court had found that the state's method of funding education, based on local property taxes, was disproportionate and unreasonable. Claremont School District v. Governor (1997) 142 N.H. 462. The resolution from the senate argued that Article 28 appeared to reserve a right for the people of New Hampshire to consent to taxation, and that this right was distinct from and in addition to the authority of the legislature to establish taxes. The court in Opinion of the Justices (Tax Plan Referendum) (1999) 143 N.H. 429 held that this article did not give such a right to the people. The court examined other constitutional provisions, case law, and history and found that the article was an express delegation of the taxing power from the people to the legislature and that Article 28 had never been understood as a reservation or exemption from the supreme legislative power granted to the legislature by Part 2, Article 2. [ART.] 28-a. [MANDATED PROGRAMS.] The state shall not mandate or assign any new, expanded or modified programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision

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The New Hampshire State Constitution unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision. Source: 1984.

The article prohibits the state from mandating a new, expanded, or modified program that imposes an additional fiscal obligation on local government, unless the local government consents or the state provides the necessary funding. New Hampshire Municipal Trust Workers' Compensation Fund v. Flynn (1990) 133 N.H. 17. This article was proposed by the 1984 constitutional convention, to address concerns that the legislature was passing programs and requirements to be implemented by the subdivisions of the state, without funding them at the state level. These mandated programs then had to be funded, generally from local property taxes, by the counties, cities, and towns of the state. The journal of the convention records that a number of municipalities sent communications to the convention, stating their support for the measure.25 The convention committee recommending passage of the proposal stated it was needed "in order to protect political subdivisions from excessive property tax assessments due to unfunded mandates." The article does not apply to the many responsibilities of local government mandated by the state prior to the date of Article 28-a's effect. Not long after the article's adoption, questions arose concerning its application. At the same time the mandated programs article was adopted, a change to Part 1, Article 11 of the constitution was adopted which required that municipalities supply accessible voting registration and polling places for elderly and disabled persons. The attorney general issued an opinion in 1986 responding to the concern that the costs of municipalities to comply with the new voting requirements might be a violation of the mandated programs article. In an attorney general's opinion to the executive director of the Governor's Commission for the Handicapped, the attorney general stated that Article 28-a did not relieve the obligation of local officials to provide accessible voting and registration places.26 The opinion explained that the state action in Article 28-a referred to acts of legislation, and cited State v. LaFrance (1983) 124 N.H. 171 for the proposition that a requirement that is a provision of the constitution is an expression of the will of the sovereign people. In the same year the attorney general also issued two opinions on the application of Article 28-a to administrative rules adopted by the state board of education (1986 Op. Atty. Gen. 150) and the police standards and training council (1986 Op. Atty. Gen. 34). A few years later, an opinion by the court further clarified that the article did not apply to actions by the state judiciary even though a decision might impose a new, expanded, or modified responsibility upon local government. The court reasoned that it was the duty of the judiciary to interpret the law, not make it. New Hampshire Municipal Trust Workers' Compensation Fund v. Flynn (1990) 133 N.H. 17.


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In 1990, an amendment to the workers' compensation statute was found to violate Article 28-a. The amendment created a prima facie presumption that a fire fighter suffering from cancer incurred the disease while employed. Under prior law, the employee had to show not only the absence of cancer upon employment, but also that the cancer was work-related. The supreme court held that this was a new responsibility imposed upon local government, in part because more fire fighters would qualify for workers' compensation benefits which would have to be funded by local governments. New Hampshire Municipal Trust Workers' Compensation Fund v. Flynn (1990) 133 N.H. 17. Two years later, in reviewing a proposed bill that prohibited the disposal of certain recyclable materials in any landfill, composting facility, or incinerator, the court found that the bill's requirements did not violate the constitutional prohibition against mandated programs. The court stated that, although the prohibition would have the practical effect in most towns and cities of the establishment or continuation of resource recovery or recycling operations, this effect was not mandated by the proposed amendment. Local government could allow the costs of the restrictions to be borne by local residents. Opinion of the Justices (Solid Waste Disposal) (1992) 135 N.H. 543. In Nashua School District, v. State (1995) 140 N.H. 457, the court engaged in a complex study of state and local special education funding mechanisms. In this case, the court found there was no constitutional violation where an amendment to the special education law made the sending school district liable for special education costs for a child placed in a residential school. The amendment did not represent a new, expanded, or modified program or responsibility to the school district in such a way as to necessitate additional local expenditures. It is likely that litigation will continue around this article, to clarify its meaning and application. [ART.] 29. [SUSPENSION OF LAWS BY LEGISLATURE ONLY.] The power of suspending the laws, or the execution of them, ought never to be exercised but by the legislature, or by authority derived therefrom, to be exercised in such particular cases only as the legislature shall expressly provide for. Source: 1784. This article is the recognition of legislative authority to temporarily suspend the operation of a law. This article is virtually the same as Part 1, Article XX of 1780 Massachusetts Constitution. The "suspension" of a statute is the temporary displacement of a valid legislative enactment by the execution of a later statute which is to prevail during its limited operation. King v. Sununu (1985) 126 N.H. 302. The legislative authority under this article was cited in Girard v. Town of Allenstown (1981) 121 N.H. 268. The voters of Allenstown, at town meeting,

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enacted a "fair rental ordinance." When the ordinance was challenged, certain tenants who resided in the town contended that the town had, under "home rule" powers, authority to enact rent control ordinances. The court held that "home rule" powers delegated by the state to local governmental units were broad, but not unlimited, and that the legislature was the supreme legislative authority, citing this article and Part 2, Article 2. The court found that a broad interpretation of the home rule statute would result in a delegation of legislative authority without any guidelines, supervision, or legislative review, which would raise "serious constitutional questions" under this article and Part 2, Article 2. The ordinance was not permitted. [ART.] 30. [FREEDOM OF SPEECH.] The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution, in any other court or place whatsoever. Source: 1784. This article preserves the principle that the legislature must be free to both speak and act without fear of criminal or civil liability. This article is very similar to Part 1, Article XXI of the 1780 Massachusetts Constitution. The New Hampshire version deletes the reference to immunity from "accusation." The privilege afforded debate and deliberation under this article is intended to protect the integrity of the legislative process. The parameters of this article were discussed in the 1976 case of Keefe v. Roberts (1976) 116 N.H. 195. Representative Keefe brought suit against Speaker of the House Roberts, after Roberts enforced Keefe's attendance in the house chamber. Roberts had issued a quorum call, and Keefe refused to return to the house chamber. Roberts instructed the house sergeant-at-arms to arrest Keefe and return him to the chamber. The court responded to a lower court's question as to whether the immunity granted to legislative debate and deliberations by Article 30 afforded protection to the house speaker in an action based on arrest of a house member in order to secure a quorum. The court held that a legislator must be acting within the scope of legitimate legislative activity to be protected by the guarantee under this article, and that this article should be broadly interpreted. The article is the equivalent of the speech and debate clause of Article I, Section 6 of the United States Constitution. The speaker was acting within the scope of his responsibilities when he enforced the attendance of the representative. When a call of the house has been ordered, the attendance of a member may be compelled. Speaker Roberts was protected by Article 30 because his acts were consistent with the due functioning of the legislative process and were part of the legislative process itself.


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[ART.] 31. [MEETINGS OF LEGISLATURE, FOR WHAT PURPOSES.] The legislature shall assemble for the redress of public grievances and for making such laws as the public good may require. Source: 1784. Amended 1792. This article states the purposes for which the legislature is to assemble, namely, for the making of the laws and the redress of public grievances. The version of this article in the 1784 New Hampshire Constitution was verbatim the same as Part 1, Article XXII of the 1780 Massachusetts Constitution. In 1792, an amendment added the requirement that grievances addressed by the legislature must be public grievances, and to remove references to "frequent" assembly and "correcting, strengthening, and confirming the laws." This article has not been interpreted by the court. [ART.| 32. [RIGHTS OF ASSEMBLY, INSTRUCTION, AND PETITION.) The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer. Source: 1784. This article states the public right of assembly and the right of the public to instruct and petition their representatives. This article is almost identical to Part 1, Article XIX of the 1780 Massachusetts Constitution. Right to Public Assembly This article guarantees the right to peaceable public assembly for the purpose of calling public attention to a matter of concern to the persons assembled, the right of citizens to instruct their representatives, and the right to petition the legislature for redress. Several cases on the right to peaceable assembly have affirmed the right of government to place reasonable restrictions on public assemblies. In 1963, students were arrested who engaged in a protest and refused to "take to the nearest shelter" during a civil defense drill authorized by state law. State v. Pinsince (1963) 105 N.H. 38. The court held that the shelter requirement did not interfere with the students' right to peaceable assembly and was justified as a preventive measure to ensure the protection and welfare of the general public through the establishment of orderly procedures to be followed in the event of emergency or disaster. In 1967, a requirement to obtain a parade license was held not to violate this article, as long as the local officials administering the licensing acted reasonably

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and in a nondiscriminatory manner. State v. Harvey (1967) 108 N.H. 139. In 1973, the court held that a statute that prohibited assembly for the purpose of committing a crime did not violate the article. State v. Albers (1973) 113 N.H. 132. In contrast, a disorderly conduct law was held in State v. Nickerson (1980) 120 N.H. 821 to be partly unconstitutional because it was overbroad. The law made a person guilty of disorderly conduct if the person was asked by law enforcement to move from a public place and refused to do so. Antinuclear protesters who refused to move from a traffic island were arrested. The court held that under this article and Article 22 of Part 1 and the First Amendment to the United States Constitution, the language allowing arrest for refusing to move from a public place was unconstitutionally overbroad. People must be afforded a chance to peacefully express their views, and the police could have used other means to secure public safety and the safety of the demonstrators. The court distinguished the Nickerson case from another review of a disorderly conduct law in 1988 in State v. Comley (1988) 130 N.H. 688. The defendant in Comley was found guilty of disturbing the peace by purposely disrupting the governor's inaugural ceremonies when he ran down the aisle of the house chamber, shouting antinuclear statements. The right to free speech under Part 1, Article 22 and this article was found to be subject to reasonable restrictions of time, place, and manner. The right to peaceable assembly includes the right to engage in public discussion. A group of cases from 1981 focused on this issue. The court reviewed two proposed laws on restricting campaign expenditures. The first bill placed an absolute limit on the amount of the total amount of contributions that a candidate for office could accept. This was held to violate the guarantees of free expression and association under this article. Opinion of the Justices (1981) 121 N.H. 434. A second bill imposed a campaign spending limitation on candidates for public office as a condition of access to public funds, and this bill was found not to violate this article. Opinion of the Justices (1981) 121 N.H. 529. The second bill differed from the first by not placing an absolute restriction and by allowing the candidate to voluntarily choose to accept public financing as a condition to receipt of public funds. Another case from 1981 examined an individual's right to engage in free political discussion. In State v. Chong (1981) 121 N.H. 860, a city ordinance was challenged that required a person to obtain a permit from the chief of police before distributing handbills, notices, or advertising devices. The police chief was allowed to impose "reasonable limits" and attach "reasonable conditions." The court held that the ordinance violated this article because it allowed standardless prior approval and unjustifiably inhibited the defendant's right to engage in free political discussion.

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Right of Public to Instruct and Petition A commentator reports that townspeople began giving written instructions to their representatives, beginning in the late 1760s.27 An example of an important issue on which a number of towns provided instructions to their representatives was the ratification of the federal constitution. In this case, at least 30 of the 108 delegates had received formal instructions from the town or towns they represented.28 The custom of a municipality's giving written instructions on an important issue to an elected representative has long been in disuse. The right to petition under this article could not be abridged by a law requiring certain notice of petitions before the beginning of a legislative session. Opinion of the Court (1885) 63 N.H. 625. The practical limits of the right to petition for redress were briefly addressed in Sousa v. State (1975) 115 N.H. 340. The court noted that the remedy of petitioning the legislature existed for persons injured by the negligence of state employees, but that it was costly and time consuming. The court suggested the creation of a state board of claims to hear such cases, which was done in 1977. The right to petition a legislative body for redress of grievances was the focus of Pickering v. Frink (1983) 123 N.H. 326. A petition signed by various citizens to remove a public official contained statements accusing the official of misconduct. Charges brought against the official were eventually dismissed, and the official brought a libel action against the signers of the petition. The court considered the issue of whether the signers of the petition were absolutely privileged because they were exercising their constitutional right to redress. The court held that this article provided a higher level of protection than the common law, which provided a qualified or conditional privilege, but that the article did not provide an absolute privilege. The court decided that once the signers demonstrated that they were exercising their constitutional right to petition for removal of an official from public office, they could not be held liable unless they actually knew that the statements in the petition were false. [ART.] 33. [EXCESSIVE PROHIBITED.]

BAIL,

FINES,

AND

PUNISHMENTS

No magistrate, or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments. Source: 1784.

This article protects individuals from excessive bail, from the imposition of excessive fines, and from cruel or unusual punishments. These guarantees also appear in the Eighth Amendment to the United States Constitution, which was made applicable to the states through the due process clause of the federal constitution in Robinson v. California (1962) 370 U.S. 660. The words of this article are the same as Article XXVI of Part 1 of the 1780 Massachusetts Constitution.

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Excessive Bail An early New Hampshire case affirmed that the determination of what is excessive bail is a matter for the courts. Evans v. Foster (1819) 1 N.H. 374. Evans also held that there can be no civil action brought against a judicial officer for imposing excessive bail. Judicial officers are exempted from civil prosecutions for their acts. The purpose of the imposition of bail is to assure a defendant's appearance in court, and therefore the amount of bail may be set no higher than that figure reasonably required to accomplish this result. Opinion of the Justices (1977) 117 N.H. 382. Conditions for bail are set by statute. Several decisions have dealt with the issue of what is excessive bail. Once bail has been set in an amount determined to be reasonable, adding a penalty assessment computed on the basis of the amount of the bail would make it excessive. Opinion of the Justices (1977) 117 N.H. 382. Therefore, once reasonable bail has been set, any amount above that would result in excessive bail. "Excessive bail" relates not only to the amount of the bail, but also to limitations placed on a defendant's access to bail. A proposed bill that prohibited a person from being a surety for an accused, directly or indirectly, in more than one case was held to be excessive bail because the limitation made it difficult for a person to procure bail. Opinion of the Justices (1852) 25 N.H. 537. Bail was also found to be excessive where it was set without a hearing by the trial court, and there was no evidence that the trial court had found that the defendant had failed to meet any of the statutory conditions allowing personal recognizance in lieu of bail. State v. Wheeler (1980) 120 N.H. 496. Denying bail wholly, when it might reasonably be granted, would conflict with this constitutional prohibition on excessive bail. State v. McNab (1849) 20 N.H. 160. Excessive Fines The court has normally examined whether or not a fine is excessive in the context of Part 1, Article 18, rather than this article. See, for example, Opinion of the Justices (1977) 117 N.H. 382; State v. Corson (1991) 134 N.H. 430. Cruel or Unusual Punishment The New Hampshire Supreme Court has often decided cases alleging cruel or unusual punishment under the Eighth Amendment to the federal constitution or under the Eighth Amendment in conjunction with Part 1, Article 18 of the New Hampshire Constitution, which prohibits disproportionate punishments. See, for example, State v. Evans (1985) 127 N.H. 501 (warden's denial of inmate's taking college courses in order to increase his chances for an earlier suspension of his sentence was not cruel or unusual punishment), State v. Dean (1975) 115 N.H. 520 (statute imposing minimum mandatory sentence for habitual offenders


99

not cruel or unusual punishment), and State v. Deflorio (1986) 128 N.H. 309 (incarceration of juveniles with adult prisoners not cruel or unusual punishment). The meaning of what is cruel or unusual punishment has been interpreted by the New Hampshire Supreme Court on the basis of federal law. In State v. Farrow (1978) 118 N.H. 296, the court looked to criteria articulated in federal cases: Punishment must not be disproportionate to the crime for which it is imposed {Coker v. Georgia (1977) 433 U.S. 584), the punishment must be acceptable according to contemporary standards and comport with basic notions of human dignity, and, in the case of a death sentence, the punishment must not be imposed arbitrarily and must be administered in a statistically significant number of similar cases {Gregg v. Georgia (1976) 428 U.S. 153). The sex offender registration law, because it was regulatory and nonpenal, did not constitute punishment for the purposes of cruel or unusual punishment. State v. Costello (1994) 138 N.H. 587. It was not cruel or unusual punishment for the attorney general to publish a witness's testimony, although it might result in public censure or damage to the witness's reputation {Nelson v. Wyman (1954) 99 N.H. 33), or for the state to transfer an inmate to an out-of-state prison which impaired visitation of his family {Goodnow v. Perrin (1980) 120 N.H. 669). Goodnow was decided under the Eighth Amendment. Wyman v. Uphaus (1957) 100 N.H. 436 was decided under the Eighth Amendment and this article. In Wyman, the court held that an order that committed a witness for contempt did not violate the article because the contempt was terminable upon the witness's compliance with a prior order for production of documents in a legislative investigation of subversive activities. The order was not punishment but coercion to compel compliance with a court order. A sentence that was grossly disproportionate to the crime, so as to constitute an abuse of discretion, might violate the prohibition on cruel or unusual punishment. State v. Wentworth (1978) 118 N.H. 832. This is a difficult violation to prove, and there have been no New Hampshire Supreme Court cases in which this has been proven. [ART.] 34. [MARTIAL LAW LIMITED.] No person can, in any case, be subjected to law martial, or to any pains or penalties by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature. Source: 1784. The article reiterates the same principle that the military is governed by the civil power, found in Part 1, Article 26. This article is the same as Part 1, Article XXVIII of the Massachusetts Constitution of 1780. There have been no New Hampshire Supreme Court cases interpreting this article.

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[ART.] 35. [THE JUDICIARY; TENURE OF OFFICE, ETC.] It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit. It is therefore not only the best policy, but for the security of the rights of the people, that the judges of the supreme judicial court should hold their offices so long as they behave well; subject, however, to such limitations, on account of age, as may be provided by the constitution of the state; and that they should have honorable salaries, ascertained and established by standing laws. Source: 1784. Amended 1792. This article recognizes the need for an independent judiciary {State v. LaFrance (1983) 124 N.H. 171) and the right of citizens to impartial judges. To help achieve this goal, judges are given tenure during good behavior, subject to mandatory retirement at age 70 under Part 2, Article 78, and judges are to receive "honorable salaries" set by the legislature. The article originally was virtually the same as Part 1, Article XXIX of the Massachusetts Constitution of 1780. The New Hampshire Constitution speaks of "impartial" judges, while the Massachusetts version refers to "free, impartial, and independent" judges. In 1792, the article was amended to refer to the age limitation provided for in Part 2, Article 78. The reference in the Massachusetts 1780 Constitution to "supreme judicial court" was changed in the New Hampshire 1784 version to "supreme (or superior) judicial court," presumably to reflect the fact that the highest court in New Hampshire at that time was the superior court of judicature. The 1792 amendment changed the wording to "supreme judicial court," even though the highest court in New Hampshire was not actually named the supreme judicial court until 1813. Impartial Judges and Administration of Justice The right to impartial judges is a due process right {Appeal of Campaign for Ratepayers' Rights (1990) 133 N.H. 480). It was one of the great principles of the common law {Moses v. Julian (1863) 45 N.H. 52), and is affirmed by this constitutional article. To implement the guarantee of impartial justice, the supreme court has the power to discipline judges, short of removal from office. In re Mussman (1972) 112 N.H. 99. The requirement of impartiality applies not only to judges in courts, but also to other bodies that may pronounce judgment on the rights of a citizen. The right to impartial jurors was affirmed in State v. Sawtelle (1891) 66 N.H. 488. The court has found that the right applies to every legal tribunal, including masters, referees, and auditors {Tuftonboro v. Willard{\93S) 89 N.H. 253); the governor and council when they are conducting a hearing on removal of public officers under RSA 4:1 {King v. Thomson (1976) 116 N.H. 838); and regulatory boards


101

acting in a quasi-judicial capacity {Winslow v. Holderness Planning Board (1984) 125 N.H. 262). An early case refers to the spirit of Article 35 regarding impartiality of judges as pervading the entire constitution. State v. Webster (1843) 13 N.H. 491. This article guarantees not only impartial decision-makers, but also an impartial decision-making process. Some situations are clear: a judge of probate who wrote a will cannot sit upon its probate. Moses v. Julian (1863) 45 N.H. 52. The smallest pecuniary interest disqualifies a party who is to act in a decision on the case. In re Petition of New Boston (1870) 49 N.H. 328. A biased juror must be disqualified. State v. Wellman (1986) 128 N.H. 340. A less clear situation may also require disqualification. The finding of county commissioners regarding the public necessity for a taking of eminent domain was overturned in In re City of Keene (1997) 141 N.H. 797. The chair of the county commission failed to disqualify himself, although his law partner had previously represented two of the property owners whose property was to be taken. The supreme court found that, in this quasi-judicial proceeding, the connection between the commission's chair and his partner's clients created a conflict of interest that violated the constitutional mandate of impartiality under this article. A judge who is not impartial should be recused, or removed from the case. The defendant in Douglas v. Douglas (1999) 143 N.H. 419 challenged the constitutionality of Supreme Court Rule 38 that provides that, when a judge's neutrality is questioned, the challenged judge, and not someone else, must determine if recusal is appropriate. The court found that the rule was constitutional because the supreme court would not hesitate to exercise its authority to discipline members of the judiciary for misconduct, suspend a sitting judge, or reassign the case to another judge. Cases that have found there has been no denial of the right to an impartial judge include State v. Linsky (1977) 117 N.H. 866 and State v. Dufield (1979) 119 N.H. 28. In Linsky, the judge had characterized the defendant's conduct at the arraignment as contemptuous, disorderly, and malingering and had some personal knowledge of disputed evidentiary facts. The court upheld the judge's failure to disqualify himself, because the test for bias was not met. There must exist bias, or a likelihood of bias, or an appearance of bias. In Dufield, the court held that a judge's involvement in negotiations preceding a defendant's agreement to testify may have been ill-advised, but the trial was conducted in a fair and impartial manner, so the defendant was not deprived of an impartial judge. The nonrandom selection of a jury foreperson by a judge was also not a violation of this article. State v. Jaroma (1993) 137 N.H. 562. A 1998 decision of the supreme court focused on the need for impartiality of the judicial process. The case concerned a law enacted by the legislature, making county sheriffs responsible for courtroom security, except at the supreme court. Court security officers had petitioned to have the law declared

102


invalid. The supreme court held in Petition of Mone (1998) 143 N.H. 128 that giving control of court security to the executive branch infringed on this article because it could affect the ability of the judicial branch to ensure impartiality in adjudicatory processes. The court noted that it was vital that bailiffs, who guard juries and relay their messages to the presiding judge, be under the direct supervision of the presiding judge to ensure the impartiality of the process. Sometimes the guarantee of judicial impartiality must be implemented through the judicial disciplinary process. A case in 2000 affirmed the court's constitutional, inherent, and statutory authority to discipline judges. In re Thayer (2000) 145 N.H. 177. The fundamental purposes of judicial discipline are to maintain the integrity of the judiciary and to foster public confidence in the judiciary. A disciplinary case may be pursued, even after a judge's resignation, because the primary purpose of judicial discipline is to protect the public, not to punish judges. Judicial Tenure and Honorable Salaries This article and Part 2, Articles 73 and 78, limit the tenure of judges. Judges hold office during good behavior but must retire at age 70. This article and Part 2, Article 59 address permanent, honorable salaries for judges. The rationale behind the constitutional requirements establishing the requirement for tenure during good behavior and permanent salaries was to ensure an independent judiciary. Opinion of the Justices (Judicial Salary Suspension) (1995) 140 N.H. 297. A judge's pay may be suspended by the supreme court as part of its disciplinary authority over judges and would not be in violation of the tenure and permanent salary guarantees under this article. Opinion of the Justices (Judicial Salary Suspension) (1995) 140 N.H. 297. Suspension is disciplinary action short of removal and, therefore, not in conflict with this article guaranteeing judicial tenure. [ART.) 36. [PENSIONS.] Economy being a most essential virtue in all states, especially in a young one, no pension shall be granted, but in consideration of actual services; and such pensions ought to be granted with great caution, by the legislature, and never for more than one year at a time. Source: 1784. This article prohibits the granting of pensions, except in consideration of actual services, and limits the granting of a pension to one year at a time. There is no counterpart for this article in the 1780 Massachusetts Constitution. This article was apparently a cautionary reaction to the granting of pensions not based on service by the former royal government and the early state government.


103

For many years, this restriction on the granting of civil pensions to one year at a time created a budgetary difficulty for the legislature and for public retirees. The legislature met in annual sessions from 1784 to 1877, and could pay pensions on an annual basis during that period. However, when annual sessions were changed to biennial sessions in 1877, the legislature appropriated pension funds to cover the two-year budget period, but the pensions had to be paid over a one-year period, because the constitution was interpreted to mean that no payments could be made in the second year. The removal of the one-year restriction on civil pensions under this article has appeared on the ballot five times. Removal of this limitation was rejected by the voters in 1850 (would have allowed a two-year pension) and in 1912, 1918, 1974, and 1976 (would have removed the one-year limitation). The history of interpretation of this article consists of a series of Opinions of the Justices, ruling on the constitutionality of proposed legislation. Certain features of the article are clear. The article prohibits the grant of a pension based solely on age {Opinion of the Justices (1917) 78 N.H. 617). The article applies to subdivisions of the state as well as the state {Opinion of the Justices (1917) 78 N.H. 617). Pensions may only be granted in exchange for actual services. Any grant which was a "mere gratuity" is prohibited. Opinion of the Justices (1917) 78 N.H. 617. Less clear is the meaning of the term "pension." Supplemental allowances to be paid under the former teachers' retirement system were found by the court to constitute "pensions" for purposes of this article because they were a reward for services already rendered. The court held that these pensions were subject to the one-year limitation. Opinion of the Justices (1959) 102 N.H. 75. Described by the court as an "incongruous and illogical" limitation, this article created great difficulties for retirees, because the legislature assembled only every other year at that time. The court in 1959 noted that the plight of various groups had been argued at constitutional conventions, including retired policemen and firemen (in 1912) and teachers (in 1920). The "pensions" for past services reviewed in Opinion of the Justices (1959) 102 N.H. 75 are to be distinguished from "deferred compensation" for present and future services discussed in Opinion of the Justices (1959) 102 N.H. 123. In the latter opinion, the funds in question were contributions made by the state to the teachers retirement system to provide future retirement allowances. The allowances were measured in part by the years of service of the retiring member performed prior to establishment of the system. These funds were not pensions subject to the constitutional one-year limitation. Retirement payments to teachers for future teaching in a proposed bill in 1937 were also construed to be deferred compensation rather than a pension. Opinion of the Justices (1937) 88 N.H.511. The one-year prohibition applied by the court in 1959 {Opinion of the Justices (1959) 102 N.H. 75) did not affect benefits paid under the new state retirement system enacted in 1967, the New Hampshire Retirement System,

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because the benefits under the new system were considered a benefit of employment, rather than a pension.29 The application of this article to the new retirement system was clarified in 1977 in an opinion of the New Hampshire Supreme Court. The court held that the one-year restriction did not apply to supplemental retirement allowances (also known as cost of living increases) or additional annuities to be paid to retirees under the new retirement system. The court noted that the provision from the 1784 constitution was in response to various abuses and meant to apply to "boons, bounties and favors" granted by the former royal government or the committee of safety, an element of early state government. Opinion of the Justices (1977) 117 N.H. 409. This narrow interpretation of the meaning of "pension" has greatly diminished, if not extinguished, the relevance of this article. [ART.] 36-a [USE OF RETIREMENT FUNDS.| The employer contributions certified as payable to the New Hampshire retirement system or any successor system to fund the system's liabilities, as shall be determined by sound actuarial valuation and practice, independent of the executive office, shall be appropriated each fiscal year to the same extent as is certified. All of the assets and proceeds, and income therefrom, of the New Hampshire retirement system and of any and all other retirement systems for public officers and employees operated by the state or by any of its political subdivisions, and of any successor system, and all contributions and payments made to any such system to provide for retirement and related benefits shall be held, invested or disbursed as in trust for the exclusive purpose of providing for such benefits and shall not be encumbered for, or diverted to, any other purposes. Source: 1984. This article requires that assets of the New Hampshire retirement system or any retirement system for public officers and employees operated by the state or its political subdivisions must be used exclusively for the benefit of any such retirement system and not for any other purpose. These retirement systems must be fully funded each fiscal year. The 1984 constitutional convention proposed this addition to the constitution to protect the integrity of the state retirement system and future benefits for retirees. In times of budget difficulties, the money in the retirement account was a source of temptation, and sometimes not funded by the legislature to the extent requested by the actuary.30 Article 36-a was cited in Day v. New Hampshire Retirement System (1993) 138 N.H. 120 to support the court's holding that the retirement system was not in "privity" with executive agencies of the state because it had a distinct identity, constituency, and interests. In accordance with Article 36-a, the funds of the retirement system were not part of the state's general treasury and could only be used for providing retirement benefits.


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[ART.] 37. [SEPARATION O F P O W E R S . | In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity. Source: 1784.

This article provides for the separation of the three powers constituting state government—the executive, legislative, and judicial. The New Hampshire article relating to the separation of powers clause is one of the few articles of the 1784 Bill of Rights not based on the 1780 Massachusetts Constitution. The New Hampshire statement allows for more flexibility than the Massachusetts version. It is believed that the ideas of John Sullivan of Durham, a Revolutionary War general and self-taught lawyer, are reflected in this article.31 The purpose of the separation of powers is to limit the power of government over the people. The separation of powers allows each of the three branches of government to act as a check on the other, so that no one branch will exercise unbridled power. The separation is not absolute; there is some overlapping. One commentator has concluded that the court has adopted a practical approach to the separation of powers and sometimes allowed governmental functions by a different branch of government than would normally be expected.32 What this article forbids is the imposition on one branch of constitutional duties belonging to another branch {Attorney General v. Morin (1943) 93 N.H. 40) or the encroachment of one branch of government on a constitutional function of another branch {Merrill v. Sherburne (1818) 1 N.H. 199). Perhaps because the legislative branch was the dominant branch under New Hampshire's revolutionary constitution, and this tradition has continued to some extent, most cases decided under this article have examined the limits of legislative powers. The court in Attorney General v. Morin (1943) 93 N.H. 40 suggested that the purpose of Article 37 was to protect the judicial and executive branches from legislative encroachment, a concern of the framers of the constitution. Most often, when the court has found a violation of this article, it has been because the legislative branch has encroached on the powers of the judicial branch. In Merrill v. Sherburne (1818) 1 N.H. 199, one of New Hampshire's earliest formally reported cases, the supreme court exercised its inherent power of judicial review in determining that the legislative branch had exceeded its constitutional authority. Until 1818, the house of representatives and the senate sometimes granted new trials by the passage of legislative acts. This was called restoring parties to their law. Barney v. Leeds (1874) 54 N.H. 128. Merrill was brought because the legislature had granted a new trial to a person challenging the outcome of a probate dispute settled in the court system. In this landmark case, the court found that this act of the legislature was an exercise of judicial

106


power contrary to this article. In Merrill, the court expounded on the meaning of separation of powers: It has been contended, and we with readiness admit, that from the close of this article, the inference is clear, that our constitution did not intend to make a total separation of the three powers of the government. The executive was to be united with the legislature in the passage of laws; and the former was to depend upon the latter for his salary. A part of the judiciary, too, was united with a part of the legislature in the trial of some impeachments; and all of the judiciary were made dependent on the executive for appointments and on the legislature and executive for the erection of courts, the apportionment of jurisdiction, for compensation and for removal by address. . . . One prominent reason for creating the judicial, distinct from the legislative department, was, that the former might determine when laws were thus "repugnant," and so operate as a check upon the latter, and as a safeguard to the people against its mistakes or encroachments. But the judiciary would in every respect cease to be a check on the legislature, if the legislature could at pleasure revise or alter any of the judgments of the judiciary. The legislature too would thus become the court of last resort. A number of cases illustrate the limitations of the legislative branch in regard to the exercise of judicial power. The court has found that the legislature went too far into areas of judicial responsibility in proposed bills that would have prescribed rules of court that conflicted with the Rules of Evidence {Opinion of the Justices (Prior Sexual Assault Evidence) (1997) 141 N.H. 562), required the court to suspend judicial salaries of every judge suspended for misconduct {Opinion of the Justices (Judicial Salary Suspension) (1995) 140 N.H. 297), and set a specific fine and maximum period of imprisonment for punishment for indirect contempt {Opinion of the Justices (1933) 86 N.H. 597). The legislature was also found to have encroached on the judiciary when it passed a law that removed the ultimate control of courtroom security from the judiciary and gave it to the executive {Petition ofMone (1998) 143 N.H. 128). The executive and legislative branches came into conflict when the governor and council adopted a conflict-of-interest policy that precluded an elected state official from being appointed to an executive branch position. The court found that the governor and council had violated the separation of powers because the enactment of conflict-of-interest legislation was the prerogative and responsibility of the legislature and not of the executive. Opinion of the Justices (1976) 116 N.H. 406. However, in another case, the court found that the legislature had not encroached on the powers of the executive. The governor and council requested an Opinion of the Justices on the constitutionality of a legislative enactment that required the governor to designate a particular agency as the health planning agency for the purpose of oversight regarding federal block grants. The court held this requirement did not violate this article because the health planning agency was not of constitutional dimension. Opinion of the

Justices

{\9n)\nN.H.l.

A series of cases involving the functions of the legislative fiscal committee provide some insight into the limits of delegation of legislative power. The legislative fiscal committee was created in 1965 to act in certain fiscal areas while the legislature was in session and during the interim between sessions.


107

The court described the administrative functions delegated to the committee by the legislature as being in the "twilight zone of constitutionality." Monier v. Gallen (1980) 120 N.H. 333. In 1970, the court examined a proposed bill giving the executive the power to raise the salaries of certain specified positions if certain criteria were met, but which conditioned the raising of the salaries on receipt of approval from the legislative fiscal committee. Opinion of the Justices (1970) 110 N.H. 359. The court found that the bill did not violate Article 37 because the power to raise salaries was legislative in nature, and the legislature could delegate its authority to a legislative committee acting as an administrative arm of the legislature. In 1980, the court found that a statute was constitutional that required that no new personnel positions could be created by the executive by the acceptance of federal money unless the positions were approved by the fiscal committee. Monier v. Gallen (1980) 120 N.H. 333. The statute provided an exception for the governor's "personal staff and consultants." In 1987, however, the legislature encroached on the executive branch when it required, in operating budget footnotes, that contracts entered into by the executive branch that obligated funds from certain appropriations had to be first approved by the legislative fiscal committee. Opinion of the Justices (1987) 129 N.H. 714. The making of contracts was found by the court to be an executive function, and it was impermissible for the legislature, once it had appropriated the money to the executive branch, to require legislative approval for the contract. [ART.) 38. [SOCIAL VIRTUES INCULCATED.) A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to justice, moderation, temperance, industry, frugality, and all the social virtues, are indispensably necessary to preserve the blessings of liberty and good government; the people ought, therefore, to have a particular regard to all those principles in the choice of their officers and representatives, and they have a right to require of their lawgivers and magistrates, an exact and constant observance of them, in the formation and execution of the laws necessary for the good administration of government. Source: 1784. The general principle of this article is that legislators and persons administering the law ought to adhere to "justice, moderation, temperance, industry, frugality, and all the social virtues." This article is based on Part 1, Article XVIII of the 1780 Massachusetts Constitution. The New Hampshire version substitutes "all the social virtues" for "piety." This article does not impose any specific requirements, but "merely advises or admonishes." State v. Elbert (1984) 125 N.H. 1. Legislative good faith cannot be a subject of judicial review. Trustees of Phillips Exeter Academy v. Exeter (1940) 90 N.H. 472.

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This article has been cited as general supporting authority for upholding the validity of a law authorizing towns to exempt manufacturing property from taxation for up to ten years. Opinion of the Court (1879) 58 N.H. 623. The court shared the legislature's duty to adhere to "honesty and justice" required under the article, and did not sanction the breaking of "public contracts" for tax relief. In Dow v. Northern Railroad (1886) 67 N.H. 1, the court, when analyzing the rights of stockholders dissenting to the long-term lease of the railroad in which they owned stock, confirmed the adherence to the requirements of "justice and honesty" under article 38 when applying the principle of equitable estoppel. [ART.] 39. [CHANGES IN REFERENDUM REQUIRED.]

TOWN

AND

CITY

CHARTERS,

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. The legislature may by general law authorize cities and towns to adopt or amend their charters or forms of government in any way which is not in conflict with general law, provided that such charters or amendments shall become effective only upon the approval of the voters of each such city or town on a referendum. Source: 1966. In 1964 this article was proposed by a convention and then ratified in 1966 by the voters. This article was intended to limit the plenary powers of the legislature over cities and towns. The court has identified the intent of the article as twofold: first, the prevention of legislative alteration of the form of government as provided by a charter without a referendum of the people affected, and second, the requirement that there be a referendum to adopt changes instituted by the municipalities themselves. Opinion of the Justices (1969) 109 N.H. 396. The article is divided into two sentences. The first sentence deals with alterations of the charter of a municipality by the legislature. No change to the charter or form of government can be made by the legislature unless it is approved in a local referendum. The second sentence authorizes the legislature to enact legislation allowing municipalities to adopt or amend their charters or forms of government, provided that any such changes are approved by local referendum. The second sentence did not become operative until the legislature enacted legislation (RSA 49-B), effective in 1979, that spelled out the charter adoption and amendment procedure. Harriman v. City of Lebanon (1982) 122 N.H. 477. The legislature has subsequently enacted addition legislation to implement this article.33 So-called "home rule" does not extend supreme legislative authority to cities and towns. Girardv. Town of Allenstown (1981) 121 N.H. 268. It has been long established that municipal corporations are subdivisions of the state, and have only the powers granted to them by the state. City of Claremont v. Craigue (1992) 135 N.H. 528. The authority of a city or town under this article is limited


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to the ability to change the charter provisions which establish the municipality's form of government. Those changes must be made in conformance with the home rule statutes, under which the legislature may limit the forms of government available to cities and towns. City of Claremont v. Craigue (1992) 135 N.H. 528. Legislation enacted or proposed by the legislature and actions by municipalities under the purported authority of the statute implementing the article have all been tested under this article. Proposed legislation found not to constitute a change in a charter or form of government has included bills allowing cities of a certain minimum population to collect fees for the construction, operation, and maintenance of public parking facilities {Opinion of the Justices (1969) 109 N.H. 396), authorizing a particular city to undertake industrial assistance programs {Opinion of the Justices (1972) 112 N.H. 42), and making a change in the boundaries of a city {Opinion of the Justices (Weirs Beach) (1991) 134 N.H. 711). Legislation changing the status of a hospital from quasi-municipal to a nonprofit community hospital was found not to be a change in the city's form of government, although the city had incorporated into its charter the legislative enactments giving the city the authority to operate the hospital. The city derived its authority to operate the hospital from legislative act, and not from its charter. Sedgewickv. City of Dover (1982) 122 N.H. 193. The home rule statute provides a framework by which a municipality may change its actual form of government, and not unbridled authority to amend its charter. In Girard v. Town of Allenstown (1981) 121 N.H. 268, a town's adoption of a rent control ordinance was found to exceed its authority under the home rule statute. The interpretation in Girard was affirmed in In re Barry (1998) 143 N.H. 161. The city of Manchester argued that it could amend its retirement system under the authority of the home rule statute because the system was part of the city's form of government. The retirement system and the amendment had been adopted by referendum in accordance with the statutory procedures. The court, however, invalidated the provision in the city charter amending the city's retirement system, stating that the home rule statute was intended only to provide a statutory framework by which the cities and towns may amend their actual form of government. An attempt was made in City of Claremont v. Craigue (1992) 135 N.H. 528 to change a charter provision relating to budget approval, but this change was invalidated by the court because it was not a change permitted under the home rule statute. In a referendum, voters of the city had approved changes to the city charter requiring direct voter approval of the budget, rather than a vote by the city council. The court held that this type of budget approval, in effect, would create an impermissible form of government because a direct vote by citizens on the budget was only allowed by statute under the town form of government. In order to effect this change, the voters would have to follow the procedures set out in the home rule statute to change from a city to a town.

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This article applies only to the charters of cities or towns. Therefore, a referendum was not required to change the charter of a county recreational area. Opinion of the Justices (1969) 109 N.H. 367.

NOTES 1. David G. McCullough, John Adams (New York: Simon & Schuster, 2001) pp. 221,224. 2. See remarks of Senator Conley, Journal of the Senate (Concord: State of NH, 1981), p. 470. 3. Cox was affirmed by the United States Supreme Court in State v. Cox (1941) 312 U.S. 569. 4. This act replaced a colonial law from May 15, 1714, which allowed voters at town meetings to choose a minister and to pay him a salary, the salary to be funded by taxes assessed on the inhabitants of the town. 5. Richard Francis Upton, Revolutionary New Hampshire: An Account of the Social and Political Forces Underlying the Transition from Royal Province to American Commonwealth (New York: Octagon Books, 1971), p. 209. 6. Laws of 1819, ch. 69. Laws of New Hampshire, Vol. VIII (1811-1820), pp. 821822. 7. See Henry S. Drinker, "Some Observations on the Four Freedoms of the First Amendment" 37 Boston Univ. Law Rev. 1, (1957), p. 55 and Arthur E. Sutherland, Jr., "Due Process and Disestablishment," 62 Harvard Law Rev. 1306 (1949), p. 1309. 8. Robert Gilmore, "Governor Meldrim Thomson Jr., and the Tenth Amendment," 16 New Hampshire Bar Journal 246 (1975), p. 247. 9. Journal of the Convention to Revise the Constitution, May 1974 (Concord: Evans Printing Co., 1975), pp. 170-171. 10. Laws of 1967, ch. 251:1. 11. See Akhil Reed Amar, "The Consent of the Governed: Constitutional Amendment Outside Article V," 94 Columbia Law Review 457 (1994), p. 479. 12. Part 2, Articles 29, 42, and 61 of the New Hampshire Constitution provide for a minimum age for governor, senator, and executive councilor that is higher than the minimum age for voting and holding other elective offices. 13. Laws of 1925, ch. 20. 14. See Fischer v. Governor (2000) 145 N.H. 28. 15. 1986 Opinions of the Attorney General, p. 60. 16. See discussion in Justice Doe's dissent in Orr v. Quimby (1874) 54 N.H. 590 on the relationship between the Virginia, Pennsylvania, and Massachusetts declarations of rights. 17. See RSA 628:2, II. 18. Laws of 1977, ch. 180:1 amending RSA 652:11-a. 19. Under federal law, a defendant does not have automatic standing at a suppression hearing to challenge the legality of a search or seizure. United States v. Salvucci (1980) 448 U.S. 83. 20. Journal of the House of Representatives (Concord: State of NH, 1985), p. 51. 21. Laws of 1791, ch. 47, "An Act regulating fees." Laws of New Hampshire, Vol. 5 (1784-1792). 22. Journal of the Convention to Revise the Constitution, May 1964 (Concord: Evans Printing Co., 1964), p. 218.


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23. McCullough, John Adams, p. 224. 24. RSA110-B:1. 25. Journal of the Convention to Revise the Constitution, May 1984 (Concord: Evans Printing Co., 1984), entries relating to Resolution 105 on pp. 165, 204, 252, and 298. 26. 1986 Opinions of the Attorney General, p. 79. 27. Jere R. Daniell, Colonial New Hampshire: A History, (Millwood, NY: KTO Press, 1981), p. 228. 28. Jere R. Daniell, "Counting Noses," New Hampshire, The State That Made Us a Nation (Portsmouth, NH: P. E. Randall, 1989), p. 197. 29. Report to the Seventeenth Constitutional Convention by the Task Force to Study the State Constitution (Concord: State of NH, 1984), p. 9. 30. See the committee report and discussion of delegates in the Journal of the Convention to Revise the Constitution, May 1984, pp. 261-262. 31. James Fairbanks Colby, Manual of the Constitution of the State of New Hampshire, Compiled from Official Sources and Edited, with Sketch of the Constitutions of the State, the Basis of Representation, and Appendix (Manchester, NH: J. B. Clarke, 1912), pp. 64-65. 32. Richard B. McNamara, "The Separation of Powers Principle and the Role of the Courts in New Hampshire," 42 New Hampshire Bar Journal 66 (2001). 33. See RSA 49-C, Local Option-City Charters and RSA 49-D, Local Option-Town Charters.


New Hampshire Constitution: Part 2, the Form of Government

NUMBERING OF ARTICLES IN PART 2 There was a period of time in the early twentieth century when articles 11 through 101 of Part 2 were renumbered, which is a potential source of confusion for anyone researching the constitution during that period. Numbering was first applied to the articles in Part 2, the "Form of Government," in the 1842 edition of the Constitution and Laws of the State of New-Hampshire, in which the Revised Statutes, the first codification of the New Hampshire statutory law, appeared. In this 1842 volume, Part 2 of the constitution was editorially divided into articles which were consecutively numbered from 1 to 101. In 1889, Part 2, Article 10 was repealed. When the constitution was printed in the next published codification of the statutes after 1889, the 1901 Public Statutes, article 10 was noted as having been rescinded with its contents incorporated into Article 11, and Articles 11 through 101 were renumbered as 10-100. Between 1889 and 1926, the New Hampshire Supreme Court and constitutional conventions in 1902, 1912, and 1918-1923 usually used the renumbering scheme of 1901, or referred to both numbers, with the 1842 number appearing parenthetically, so that article 45 of 1842 was referred to as "Article 44 (45)." In 1926, when the statutes were recodified as the Public Laws, the numbering reverted to the 1842 system. This is the system that appears in the constitution today. ARTICLE 1. [NAME OF BODY POLITIC] The people inhabiting the territory formerly called the province of New Hampshire, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign and independent body-politic, or state, by the name of THE STATE OF NEW HAMPSHIRE. Source: 1784.

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This article declares the formation and the name of the state of New Hampshire. This article is similar to the preface of Part 2 of the 1780 Massachusetts Constitution called "The Frame of Government." In State v. U.S. & Canada Express Co. (1880) 60 N.H. 219, the court cited this article as being the constitutional expression of the creation of government by a social contract. The court cited the article again in Amyot v. Caron (1937) 88 N.H. 394, when ruling on the validity of a law establishing the finance commission of Manchester. In Amyot, the court affirmed legislative control over local government, noting that the state was not a union of locally organized communities or units but was formed by "the people inhabiting the territory formerly called the province of New Hampshire." [ART.] 2. [LEGISLATURE, HOW CONSTITUTED.] The supreme legislative power, within this state, shall be vested in the senate and house of representatives, each of which shall have a negative on the other. Source: 1784. This article states that the legislature holds the supreme legislative authority of the state and vests this authority in a bicameral legislature, consisting of the senate and house of representatives, each of which may exercise a negative on the other. This article is similar to the 1780 Massachusetts Constitution, Part 2, Article I, in that both articles provide for a senate and house of representatives, "each of which shall have a negative on the other." The legislative power is supreme only in its proper legislative sphere of action, because limitations on the power are set in other articles of the constitution and in the federal constitution and laws. Opinion of the Justices (1829) 4 N.H. 565. A limitation on the extent of legislative power is that one legislature cannot limit the exercise of power to make laws by a future legislature. Therefore, a legislature cannot pass a law that cannot be repealed. Dow v. Northern Railroad (1887) 67 N.H. 1. The constitutional power to enact general state legislation may not be delegated. State v. Hayes (1881) 61 N.H. 264. Thus, proposed laws were unconstitutional that allowed the people to exercise this power through a tax plan referendum {Opinion of the Justices (Tax Plan Referendum) (1999) 143 N.H. 429) or allowed legislation proposed by the governor to take effect automatically unless disapproved by the legislature {Opinion of the Justices (1950) 96 N.H. 517). Although the legislature may not delegate its power to make laws, it may delegate its authority for discretion as to their execution. This authority has often been delegated to executive branch administrative agencies in the form of rulemaking authority and to municipalities as authority to enact local legislation.


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In order to be constitutional, a grant of power must have clear standards and guidelines. The court struck down a law giving broad authority to the milk board to fix prices in Ferretti v. Jackson (1936) 88 N.H. 296, as an unconstitutional delegation of legislative authority. The excessive delegation doctrine applied in Ferretti has retained its vitality in New Hampshire, for example, as in Guillou v. State Division of Motor Vehicles (1986) 127 N.H. 579, where the court found that a law giving the director of motor vehicles authority to suspend or revoke a driver's license for any cause he deemed sufficient was an unconstitutional delegation of legislative authority. Guillou, however, cited only Part 1, Article 37 as constitutional authority, rather than citing both that article and Part 2, Article 2. | ART.] 3. [GENERAL COURT, WHEN TO MEET AND DISSOLVE.] The senate and house shall assemble biennially on the first Wednesday of December for organizational purposes in even numbered years, and shall assemble annually on the first Wednesday following the first Tuesday in January, and at such other times as they may judge necessary; and shall dissolve and be dissolved at 12:01 A.M. on the first Wednesday of December in even numbered years and shall be styled THE GENERAL COURT OF NEW HAMPSHIRE. Source: 1784. Amended 1877, 1889, 1974, and 1984. This article specifies the frequency and timing of legislative sessions, and provides the official name of the legislature, the General Court of New Hampshire. The 1784 version of this article was modeled on Part 2, Article I of the 1780 Massachusetts Constitution. In 1784, the Massachusetts legislature assembled annually on the last Wednesday in May, while in New Hampshire the assembly took place on the first Wednesday of June. Both bodies were called "The General Court." In its earliest days, the New Hampshire legislature met in annual sessions beginning in June. In 1877, largely because of concern about the cost of annual sessions, this article was amended to require sessions every two years instead of every year. In 1889, the time of assembly was changed to January. This followed a trend toward winter sessions in other states.1 Farmers, of whom there were many in the legislature, preferred January to June, so they could tend to their crops in the summer months, and legislators in general preferred not to be shut indoors on warm June days. Traveling was easier in the winter than in the past because of the advent of railroads and better roads. The outfitting of Representatives Hall with ten steam radiators made adequate heating of the hall possible in January.2 Returning to annual sessions was frequently considered and frequently almost adopted. Between 1965 and 1976, there was only one year (1968) without a regular or special legislative session. In 1966, a legislative annual session proposal was ratified by the requisite two-thirds of the qualified voters,

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but then invalidated the following year by the New Hampshire Supreme Court in Gerber v. King (1967) 107 N.H. 495, because the wording of the question was unclear. The voters in 1970 appeared to have adopted annual sessions after the initial count of an annual sessions proposal showed its adoption, but a recount showed its narrow defeat. By the late 1970s, it was clear that the legislature almost always had business in the second year of its term that could not wait for the next biennial session, so that the adoption of annual sessions would reduce the need for special sessions. In November 1976 the vote was very close, but not enough for adoption. Finally, in 1984, annual sessions were ratified, after the question had appeared on the ballot for the sixth time over a 20-year period. An amendment in 1974 changed the organization date of the legislature from the first Wednesday in January to the first Wednesday in December. This allowed the legislature elected in November to meet for organizational purposes in December, so that it did not need to take time for organizational matters at the beginning of the January session. The amendment also provided that the old legislature dissolved on the same day that the new legislature met in December to organize, instead of dissolving seven days before the first Wednesday in January, thus eliminating the seven-day hiatus when there was no legislature in existence. The amendment also set the day of assembly in January as the first Wednesday after the first Tuesday in January, to avoid the possibility of having to meet on New Year's Day. The authority of the legislature to assemble at other times "as they may judge necessary," without the consent of governor and council, was affirmed by the court in 1944 in Opinion of the Justices (1944) 93 N.H. 474. In accordance with the legislature's authority under this article to call a special session, the legislature does not need the cooperation of the governor to call a session after its adjournment, if it follows some orderly method of obtaining the opinions of its members. This is one of the two methods of calling a special session, the other being the authority of the governor and council under Part 2, Article 50. The authority of the governor and council under Part 2, Article 50 to "prorogue" or postpone the reassembling of the legislature for up to 90 days is a check on the legislative power under Article 3 to assemble at times other than the regular times of assembly. The meaning of "organization" as used in this article envisions an election of officers. Chwalek v. Dover School Committee (1980) 120 N.H. 864. [ART.] 4. [POWER OF GENERAL COURT TO ESTABLISH COURTS.] The general court (except as otherwise provided by Article 72-a of Part 2) shall forever have full power and authority to erect and constitute judicatories and courts of record, or other courts, to be holden, in the name of the state, for the hearing, trying, and determining, all manner of crimes, offenses, pleas, processes, plaints, action, causes, matters and things whatsoever arising or happening within this state, or between or concerning persons inhabiting or residing, or brought, within the same,


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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. To which courts and judicatories, are hereby given and granted, full power and authority, from time to time, to administer oaths or affirmations, for the better discovery of truth in any matter in controversy, or depending before them. Source: 1784. Amended 1966.

This article gives the legislature the authority to establish courts and to designate their jurisdiction. This article is virtually the same as Part 2, Article III of the 1780 Massachusetts Constitution. The New Hampshire Supreme Court noted in 1880 that the Massachusetts version was copied from the Massachusetts province charter of 1691, written in the typical "prolix style" of the time. State v. U.S. & Canada Express Co. (1880) 60 N.H. 219. The article was amended in 1966 to insert in the first sentence the exception relating to Part 2, Article 72-a, which establishes the supreme and superior courts as constitutional courts, contributing to the constitutional foundation for independence of the judicial branch. Part 1, Articles 35 and 37, requiring impartial judges and the separation of powers, also support the idea of an independent judiciary. The discussion under Article 72-a describes the political conflicts and instability of the court structure in the nineteenth century that provided the background for the establishment of the two highest state courts as constitutional courts. Until 1966, the New Hampshire Constitution did not establish any particular courts, although it did refer to the justices of the superior and probate courts (Part 1, Article 35 and Part 2, Articles 59, 74, 76, 78, 80, 81). At the time of the adoption of the constitution, the highest court in the state was called the superior court of judicature. The power to establish courts includes the power to provide for new modes of trial, subject to other constitutional restrictions. The court recognized in 1859 that the legislature had the power to constitute new tribunals and provide for new modes of trial, subject to the right to trial by jury guaranteed by the constitution. Opinion of the Justices (1859) 41 N.H. 550. The legislature may reconstruct the courts, within the limits of the constitution. This power does not extend to directing the executive branch to perform a function that intrudes upon an essential function of the judicial branch {Petition of Mone (1998) 143 N.H. 128) or to authorize the legislature to take from the judicial department a power that has always been recognized as an essential attribute of judicial tribunals, such as the power of indirect contempt {Opinion of the Justices (1933) 86 N.H. 597).3 The legislature has frequently exercised its power to create inferior tribunals, as, for example, when giving the board of selectmen the power to assess taxes {Boody v. Watson (1886) 64 N.H. 162) or when authorizing the insurance commissioner to determine facts regarding the revocation of licenses {Karamanou v. H. V. Greene Co. (1922) 80 N.H. 420). In Karamanou, the cou

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noted that the commissioner was subject to the superintending power of the supreme court as to questions of law, as constitutionally required. The issue of who could exercise marital jurisdiction was addressed in a ruling on a proposed bill regarding marital masters. The court stated that only judicial officers could exercise judicial jurisdiction, and marital masters were not judicial officers appointed as required by the constitution. The legislature could decide which judicial officers should exercise that jurisdiction (Part 2, Article 76) or create special judicial positions for that purpose (Part 2, Articles 4 and 72-a). Opinion of the Justices (1986) 128 N.H. 17. The authority of the legislature to authorize a retired justice to sit temporarily and participate in court decisions was challenged in Claremont School District v. Governor (1998) 142 N.H. 737. The court held that the power of the legislature to authorize the assignment of a retired justice on a temporary basis was implicitly derived from its power under this article "to erect and constitute judicatories and courts of record, or other courts." This authority empowered the legislature to determine the composition of courts and to create mechanisms to facilitate the administration of justice. These mechanisms included statutes allowing a temporary justice to be appointed in case of a disqualification; justices retired by reason of age limitation to be appointed as referees, auditors, and masters; and justices retired by reason of age limitation with ten years' service to be judicial referees. |ART.] 5. [POWER TO MAKE LAWS, ELECT OFFICERS, DEFINE THEIR POWERS AND DUTIES, IMPOSE FINES AND ASSESS TAXES; PROHIBITED FROM AUTHORIZING TOWNS TO AID CERTAIN CORPORATIONS.] And farther, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties, or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof, and of the subjects of the same, for the necessary support and defense of the government thereof, and to name and settle biennially, or provide by fixed laws for the naming and settling, all civil officers within this state, such officers excepted, the election and appointment of whom are hereafter in this form of government otherwise provided for; and to set forth the several duties, powers, and limits, of the several civil and military officers of this state, and the forms of such oaths or affirmations as shall be respectively administered unto them, for the execution of their several offices and places, so as the same be not repugnant or contrary to this constitution; and also to impose tines, mulcts, imprisonments, and other punishments, and to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and residents within, the said state; and upon all estates within the same; to be issued and disposed of by warrant, under the hand of the governor of this state for


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the time being, with the advice and consent of the council, for the public service, in the necessary defense and support of the government of this state, and the protection and preservation of the subjects thereof, according to such acts as are, or shall be, in force within the same; provided that the general court shall not authorize any town to loan or give its money or credit directly or indirectly for the benefit of any corporation having for its object a dividend of profits or in any way aid the same by taking its stocks or bonds. For the purpose of encouraging conservation of the forest resources of the state, the general court may provide for special assessments, rates and taxes on growing wood and timber. Source: 1784. Amended 1792, 1877, and 1942. This article enumerates and places certain limitations on the lawmaking and appointive powers of the legislature. The 1784 version was very similar to the 1780 Massachusetts Constitution, Part 2, Article IV, except that New Hampshire specifically allowed the legislature to impose "fines, mulcts, imprisonments, and other punishments," and Massachusetts allowed for the imposition of reasonable "duties and excises." The article was amended in 1792 to change "president" to "governor." In 1877, when annual sessions were changed to biennial sessions, the reference to election of civil officers "annually" was changed to "biennially," and a proviso was added to prohibit towns and cities from making loans or giving credit to corporations. The final sentence was added in 1942 to allow taxation of growing wood and timber at a rate different from the rate based on the full assessed value required for other real property or income. This amendment was intended to address the problem of landowners prematurely cutting down timber on their lands to avoid paying tax on timber lands appraised at full value. Opinion of the Justices (1955) 99 N.H. 532. Timber tax reform had been rejected by the voters in 1912 and debated by conventions in 1920, 1921, and 1938, so the adoption of the amendment in 1942 represented the resolution of a long-standing issue. This article operates in conjunction with Part 1, Article 12 and Part 2, Article 6 to ensure the fairness of any tax scheme enacted by the legislature. Smith v. New Hampshire Department of Revenue Administration (1997) 141 N.H. 681. Most of the cases decided under this article relate to tax issues. Power to Enact "Wholesome and Reasonable" Laws Not Contrary to the Constitution The basic meaning of "wholesome and reasonable" is that the laws cannot be repugnant to the constitution. Opinion of the Justices (1937) 88 N.H. 484. The expediency and policy of laws is a legislative function, and all laws, not repugnant to the constitution, are "the law of the land." Trustees of Dartmouth College v. Woodward (1817) 1 N.H. 111.4 The court in Merrill v. Sherburne (1818) 1 N.H. 199 recognized the authority of the judicial branch to determine when laws enacted by the legislative branch were "repugnant" to the constitution. In Merrill, the court held that the legislature had exceeded its

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constitutional authority when it granted a new trial to an unhappy litigant who challenged the outcome of a probate dispute settled in the court system. As stated in an early case confirming the right of a dog owner to a hearing on the issue of damages, the power granted by the constitution did not include the power to make laws in plain violation of the "fundamental principles of natural justice." East Kingston v. Towle (1868) 48 N.H. 57. The legislature's power to make "wholesome and reasonable" laws allows it to place "wholesome and reasonable" restrictions on rights guaranteed to individuals under the Bill of Rights. The "reasonableness" of a law depends on the situation at the time the law is passed. Carter v. Craig (1914) 77 N.H. 200. The legislature, and not the judicial branch, is the judge of what is reasonable and wholesome. Coleman v. School District of Rochester (1936) 87 N.H. 465. Defining of Criminal Acts and Punishments The legislature has constitutionally recognized authority in this article to define criminal acts and to prescribe punishments. In accordance with this authority, the legislature may declare an act to be criminally negligent per se {State v. Wong (1984) 125 N.H. 610), including criminally penalizing employers who fail to make required payments to the state unemployment compensation fund {State v. Thayer (1978) 118 N.H. 819). In State v. Dean (1975) 115 N.H. 520, a defendant challenged a mandatory criminal penalty in a statute as being in conflict with the inherent authority of a sentencing judge to suspend all or part of a sentence. The court upheld the mandatory sentence, stating that the legislature was not prohibited from constricting the independent exercise of judicial discretion by the requirement of mandatory sentences. Naming and Settling of Civil Officers The legislature may provide for the election or appointment of any civil officer in the state, or may delegate that authority by statute, as long as the constitution does not make some other provision for the election or appointment. Part 2, Article 67 provides for the election of the secretary of state and the state treasurer by the legislature, and Part 2, Article 46 provides that the governor and council appoint judges, the attorney general, and certain military officers, so the selection of these officers cannot be altered by the legislature. The court has held that the basis for the authority of the legislature to divide towns into voting districts or precincts for the election of civil officers is derived from the power of the legislature to name and settle civil officers within the state, for whom no other provision is made in the constitution. Opinion of the Justices (1905) 73 N.H. 618. This same power was again cited by the court in 1975 as the reason that an attempted elimination of a classified position in the insurance department by the insurance commissioner was invalid. The court noted that, absent specific delegation, the power to abolish nonconstitutional


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positions rests only with the general court. Hunt v. Personnel Commission (1975) 115 N.H.713. The authority to appoint such officers may be delegated by the legislature, and the legislature may impose conditions on the authority. Opinion of the Justices (1970) 110 N.H. 359. The authority to appoint a commissioner of health and welfare could be properly delegated by the legislature to the governor and council or to an advisory commission, or to an advisory commission if the governor and council failed to make an appointment within a certain number of days. Opinion of the Justices (1975) 115 N.H. 159. Proportional and Reasonable Taxes The legislative authority to impose taxes is limited by the constitutional requirement that they be "reasonable and proportional" {Opinion of the Justices (1829) 4 N.H. 565). Reasonable and proportional taxes are equal in valuation and uniform in rate {Opinion of the Justices (1977) 117 N.H. 749). A "reasonable" assessment is a just assessment {Opinion of the Justices (1829) 4 N.H. 565). To have a uniform valuation and uniform rate, a tax must be uniform throughout the taxing district, so that a state tax must be uniform throughout the state, a county tax throughout the county, and a town tax throughout the town. Boston, Concord and Montreal Railroad v. State (1880) 60 N.H. 87. A tax is disproportionate when it is assessed at a greater proportion of a taxpayer's property's true value than the property of other taxpayers in the same taxing district. Appeal of Town of Bow (1990) 133 N.H. 194. The holding that the entire state was the taxing district for purposes of funding education was a critical element of Claremont School District v. Governor (1997) 142 N.H. 462. In one of a series of cases dealing with the constitutionality of the state school funding system, the court concluded that local property taxes, authorized by the legislature to fulfill the requirements of the New Hampshire Constitution and levied by local government to fund education, were state taxes rather than local taxes. These taxes did not meet the constitutional requirements of "reasonable and proportional" because of the varying local property tax rates across the state. The estates of all residents and inhabitants of the state are taxable. Town of New London v. Colby Academy (1898) 69 N.H. 443. The constitution does not prohibit the inequality that results when the legislature chooses to tax some property and not other property. Opinion of the Justices (1949) 95 N.H. 548. Revenue need not be called a "tax" to be subject to the requirements of this article. Licensing authority cannot be used to generate revenues in excess of direct and incidental costs of licensing. Any revenues over the cost of licensing are taxes, and subject to constitutional requirements for taxes. American Automobile Association v. State (1992) 136 N.H. 579. A tax on telecommunications poles and wires was found to be reasonable and proportional in Opinion of the Justices (Property Taxation of Telephone Poles ) (1997) 142 N.H. 102. Examples of taxes found not to be reasonable and

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proportional include the minimum business profits tax {Johnson & Porter Realty Co. v. Commissioner of Revenue Administration (1982) 122 N.H. 696) and a homeowner's property tax exemption law with a minimum valuation provision {Felder v. City of Portsmouth (1974) 114 N.H. 573). Classification for Tax Purposes See the discussion under Part 2, Article 6 on this topic. Tax Abatements and Exemptions The principles of this article for tax fairness apply to tax abatements and exemptions, although abatements and exemptions are not specifically addressed in the constitution. The legislature has broad discretion to tax and provide for exemptions and exemptions. Abatements must be supported by good cause and exemptions for just reasons. Opinion of the Justices (1977) 117 N.H. 512. An exemption must be reasonable and uniform. Opinion of the Justices (1989) 131 N.H.640. A decision of the legislature will be upheld, provided there are just reasons for the exemption of the class of property from taxation. Opinion of the Justices (1949) 95 N.H. 548. Classification of property for purposes of an exemption may not be arbitrary, and must reasonably promote a "proper subject of public welfare or interest." Eltra Corp. v. Town ofHopkinton (1979) 119 N.H. 907. Exemptions and abatements have frequently been tested under this article. Some have been rejected for lack of uniformity ($8,000 minimum valuation provision in a property tax exemption law, Felder v. City of Portsmouth (1974) 114 N.H. 573), and others because they were disproportionate (proposed special abatement of the statewide property tax, Opinion of the Justices (School Financing) (1998) 142 N.H. 892). The delegation by the legislature to municipalities to allow an elderly exemption, the amount of which could vary from one town to another, was approved in Opinion of the Justices (1975) 115 N.H. 228, because it was equal within the taxing district. Prohibition on Benefit to Private Corporations This article prohibits the legislature from authorizing any town to loan or give any money or credit to a private corporation. Therefore, the state cannot reimburse depositors for losses resulting from a bank failure {Opinion of the Justices (1959) 102 N.H. 189) or pay the expenses of liquidation of a commercial account of an insolvent bank {Opinion of the Justices (1961) 103 N.H. 281). An exemption for a private entity may be allowable if it is uniform and for the benefit and welfare of the state. The exemption from taxation of the mill of a private woolen manufacturing company did not meet this test {Eyers Woolen Co.


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v. Town ofGilsum (1929) 84 N.H. 1). The Eyers case is in contrast to Opinion of the Justices (1949) 95 N.H. 548, in which the court examined a proposed law and found that the exemption from taxation of private airports dedicated to public use, as provided in the law, would be constitutional. The court stated in the 1949 opinion that the proposed exemption was uniform and of state-wide application and that there was a direct benefit to the public. The same reasoning applied by the court in Opinion of the Justices (1949) 95 N.H. 548 was also employed in Town of Hampton v. Hampton Beach Improvement Co. (1966) 107 N.H. 89. In Town of Hampton, the court considered whether a contractual provision in a contract between the town and a corporation that benefited the corporation violated the prohibition on benefit to private corporations. In Town of Hampton, a provision in a realty lease between the town and the corporation exempted the corporation from paying taxes on the leased land, which was to be developed for the benefit of the town. The test applied by the court was whether the lease over its entire term would primarily benefit private parties or whether it would serve mainly proper public purposes with incidental benefits to private parties. The provision in the realty lease met the "mainly proper public purposes" test. The provision was not an exemption in the nature of a gratuity, but a contract between the town and the lessee corporation. The town could validly contract with the lessee corporation to exempt it from taxes as a consideration for the lessee's undertakings in the lease. Tax on Standing Timber Under the authority of the timber tax provision added in 1942, the legislature in 1949 enacted a timber yield tax to be assessed on timber when it was cut down. The court approved the levying of the tax in Brown v. Rye (1957) 101 N.H. 92. |ART.| 5-a. [CONTINUITY OF GOVERNMENT IN CASE OF ENEMY ATTACK.] Notwithstanding any general or special provision of this constitution, the general court, in order to insure continuity of state and local government operations in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, and to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations including but not limited to the financing thereof. In the exercise of the powers hereby conferred the general court shall in all respects conform to the requirements of this constitution except to the extent that in the judgment of the general court so to do would be impracticable or would admit of undue delay. Source: 1960.

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The article allows the legislature to take immediate action to temporarily fill governmental vacancies in the case of enemy attack, until proper elections and appointments fill the vacancies. This article was added to the constitution in 1960, in the wake of the cold war and attendant fears of lack of governmental continuity in case of enemy attack. The Voters' Guide for the election asserted that government would come to a standstill if many officers and officials of government were killed by enemy nuclear missiles. The article was cited in 1997 by the court as one of only two articles in the constitution in which a duty is affirmatively placed on the legislature, the other article being Part 2, Article 83, relating to public education. Claremont School District v. Governor (1997) 142 N.H. 462. [ART.] 5-b. [POWER TO PROVIDE FOR TAX VALUATIONS BASED ON USE.] The general court may provide for the assessment of any class of real estate at valuations based upon the current use thereof. Source: 1968. This article allows the legislature to pass laws that allow the taxation of real estate at a special rate based on the current use of the property. In 1968, this article was added to the constitution to lessen the property tax burden on farmers and people who held forest lands by allowing them to pay lower taxes by keeping their land in an undeveloped state, while at the same time providing an environmental benefit to the state. Before the passage of current use laws, the assessment of land at its highest economic use resulted in high tax assessments and was a factor in the selling of tracts of lands to developers. The statutory definition of land that qualifies for current use assessment has been broadened over the years. In 1993, the legislature considered an amendment to the current use statute (currently codified at RSA 79-A) to assess a penalty, in addition to the land use change tax, on a person who changed the use of land in current use to a use which did not qualify for current use assessment within 10 years of the date the property was placed in current use. In Opinion of the Justices (Limitation on Civil Actions) (1993) 137 N.H. 270, the court held that assessing such a penalty would not violate equal protection or impermissibly classify taxpayers in violation of Part 1, Articles 1 and 12 or Part 2, Article 5. [ART.] 6. [VALUATION AND TAXATION.] The public charges of government, or any part thereof, may be raised by taxation upon polls, estates, and other classes of property, including franchises and property when passing by will or inheritance; and there shall be a valuation of the estates within the state taken anew once in every five years, at least, and as much oftener as the general court shall order.


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Source: 1784. Amended 1903. This article specifies the types of property that are subject to taxation and requires a valuation of estates at least every five years. The 1784 version was based on the 1780 Massachusetts Constitution, except that Massachusetts required a valuation of estates at least every ten years, instead of at least every five. The constitution originally allowed only for two subjects of taxation, namely, polls and estates, and, based on this article and Article 5, these subjects were not open to classification. The authority to tax "estates" included authority to tax based upon the ownership, possession, or enjoyment of every type of property in the state. Conner v. State (1925) 82 N.H. 126. The 1903 amendment made a radical change in the New Hampshire system of taxation, by permitting taxes on other classes of property besides polls and estates, including franchises and property passing by inheritances. When these additional powers of taxation were granted, existing constitutional limitations on equality, proportionality, and double taxation, to the extent they were necessarily in conflict with this new grant, were to be disregarded. Thompson v. Kidder (1906) 74 N.H. 89. In 1971, the court noted that it had long been recognized that the 1903 amendment allowed the disproportionality inherent in taxes levied on "classes of property" made taxable by the 1903 amendment, but that the requirements of Part 2, Article 5 for proportionality and uniformity of a rate within a class were still required. Opinion of the Justices (1971) 111 N.H. 206. This expanded authority allowed the legislature to tax inheritances {Thompson v. Kidder (1906) 74 N.H. 89), but not to impose a graduated inheritance tax {Williams v. State (1924) 81 N.H. 341). Taxation of income was one of the "other classes of property" allowed to be taxed under the amendment {Conner v. State (1925) 82 N.H. 126, holding that a law taxing dividends and interest did not violate Article 6). Proposed legislation to tax capital gains {Opinion of the Justices (1977) 117 N.H. 512), franchises of utilities {Opinion of the Justices (1930) 84 N.H. 559), and retail sales {Opinion of the Justices (1930) 84 N.H. 559) was found to be permissible under Article 6. The legislature has broad discretion to selectively classify property for the purposes of taxation. Opinion of the Justices (1965) 106 N.H. 202. The court has long held that property may be classified for tax purposes, but not taxpayers. Opinion of the Justices (1930) 84 N.H. 559. Classification may be made for any just reason {Opinion of the Justices (1927) 82 N.H. 561), and all subjects of taxation within a class must be taxed at a uniform rate to conform to the equality and proportionality requirements of Part 2, Article 5. A class created by the legislature for the purposes of taxation must be reasonable and not arbitrary. The following cases provide an example of how the court dealt with the classification issue in the context of taxation of tobacco products. Havens v. Attorney General (1940) 91 N.H. 115 held that the classification of tobacco products for taxation, as separate from other commodities, was not so unreasonable or arbitrary as to violate the legal

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requirements of classification. In Havens, the court reasoned that the "line of demarcation between tobacco and other commodities" had long received legislative recognition in laws restricting the sale of tobacco to minors. In Opinion of the Justices (1951) 97 N.H. 543, cigarettes, separate from other tobacco products, were found to constitute a distinct class of property within the meaning of Article 6 and could be taxed while other tobacco products were exempted from tax. However, the taxation of cigarettes at a higher rate than other tobacco products "in the absence of a regulatory or just reason" for the different rate was held to not be constitutional. Opinion of the Justices (1955) 99 N.H. 517. The requirement that there be a valuation of the estates within the state at least every five years was interpreted by the court in the context of a case challenging the constitutionality of the statewide property tax in 2001 {Sirrell v. State (2001) 146 N.H. 364). The court found that the valuation requirement in Article 6 originally referred to the state's rating of the value of real estate within the state that was to be taxed. The court held that the requirement for a valuation of estates did not require full physical inspections of all property in the state every five years, but did require that property be assessed at market value at least every five years. The state law requirement that local assessors and selectmen annually examine all real estate in their cities and towns and reassess any property that has changed in value met the constitutional valuation requirement. Failure of certain municipalities to appraise their property at least every five years was held to be a failure of the state to enforce the constitutional requirement, and did not result in the invalidation of the tax being challenged. To be actionable, the failure to revalue property every five years must be shown to result in constitutionally disproportionate taxation and harm to taxpayers. [ART.] 6-a. [USE OF CERTAIN HIGHWAYS.]

REVENUES RESTRICTED TO

All revenue in excess of the necessary cost of collection and administration accruing to the state from registration fees, operators' licenses, gasoline road tolls or any other special charges or taxes with respect to the operation of motor vehicles or the sale or consumption of motor vehicle fuels shall be appropriated and used exclusively for the construction, reconstruction and maintenance of public highways within this state, including the supervision of traffic thereon and payment of the interest and principal of obligations incurred for said purposes; and no part of such revenues shall, by transfer of funds or otherwise, be diverted to any other purpose whatsoever. Source: 1938. This article prohibits the diversion of "highway funds" for purposes other than highway purposes. Highway purposes include road construction, maintenance, and improvements. When the article was adopted in 1938, support for this proposition was strong because there had been recent attempts to use highway revenues for non-highway purposes. During the previous legislative


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session, there had been such an attempt. After the session was over, highway revenues were, in fact, used for a nonhighway purpose when the governor and council borrowed money from highway funds to purchase land for the Daniel Webster homestead. The funds were repaid with proceeds of timber cut from the lands, but many believed this to be a dangerous precedent. The restrictions on highway fund revenues apply to such revenue accruing to municipalities as well as the state, because municipalities derive their authority to regulate highways from the state. Opinion of the Justices (1947) 94 N.H. 501. Highway Funds Defined The article defines highway funds as revenues derived from "registration fees, operators' licenses, gasoline road tolls or any other special charges or taxes with respect to the operation of motor vehicles or the sale or consumption of motor vehicle fuels." Highway funds do not include motor vehicle fines {Opinion of the Justices (1977) 117 N.H. 300), motor vehicle certificate of title fees {American Automobile Association v. State (1992) 136 N.H. 579), or unrefunded tolls from motor fuel used in boats {Opinion of the Justices (1967) 108 N.H. 170). However, because the use of parking meters was an incident of modern highway travel, revenue from the operation of parking meters was restricted money. Opinion of the Justices (1969) 109 N.H. 396. Use of Highway Funds Highway funds must be used for the "construction, reconstruction and maintenance of public highways . . . including the supervision of traffic thereon." Highway funds may be used for the construction of public parking facilities {Opinion of the Justices (1969) 109 N.H. 396) or the relocation of utility facilities necessitated by the relocation of a highway {Opinion of the Justices (1957) 101 N.H. 527). The language allowing use of highway funds for the "supervision of the traffic thereon" was found by the court to allow the use of highway funds for funding the operation of the detective bureau of the division of state police, provided that the percentage of the bureau's budget coming from the highway trust fund was reasonably related to the amount of the work of the bureau which was devoted to the enforcement of traffic laws. Opinion of the Justices (1977) 117 N.H. 300. This article does not allow the expenditure of highway funds for developing modes of public highway passenger transportation with special emphasis on programs for the elderly and handicapped. Opinion of the Justices (1977) 117 N.H.655.

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[ART.] 6-b. [USE OF LOTTERY EDUCATIONAL PURPOSES.]

REVENUES

RESTRICTED

TO

All moneys received from a state-run lottery and all the interest received on such moneys shall, after deducting the necessary costs of administration, be appropriated and used exclusively for the school districts of the state. Such moneys shall be used exclusively for the purpose of state aid to education and shall not be transferred or diverted to any other purpose. Source: 1990.

This article, added in 1990, constitutionally mandates that revenues from a state-run lottery must be used for aid to education. New Hampshire has the oldest state-run lottery in the nation, having passed a law allowing a state sweepstakes lottery in 1963. The lottery was originally tied to horse races, and its revenues were intended to be used for educational purposes. When the lottery was created, a statute was enacted to provide for the distribution of lottery revenues to school districts, but the statute was suspended during several years in the 1980s because of budgetary shortfalls. The circumstances of the suspensions are discussed in King v. Sununu (1985) 126 N.H. 302. The fear that revenues, in a time of fiscal need, would be used for noneducational purposes motivated the adoption of this article. This article has not been interpreted by the court. [ART.] 7. (MEMBERS OF LEGISLATURE NOT TO TAKE FEES OR ACT AS COUNSEL.] No member of the general court shall take fees, be of counsel, or act as advocate, in any cause before either branch of the legislature; and upon due proof thereof, such member shall forfeit his seat in the legislature. Source: 1792.

This article, added to the constitution in 1792, prohibits legislators from taking fees or acting as counsel or advocate before the house or senate. This article was intended to curb conflict-of-interest situations which had commonly occurred during the Revolutionary and early constitutional periods. This article is not codified in statutory law, but ethics guidelines adopted by the general court prohibit a legislator from accepting "anything of value . . . in return for . . . participating in, influencing, or attempting to influence any decision of the legislature."5 The article has never been interpreted by the court.


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[ART.] 8. [OPEN SESSIONS OF LEGISLATURE.] The doors of the galleries, of each house of the legislature, shall be kept open to all persons who behave decently, except when the welfare of the state, in the opinion of either branch, shall require secrecy. Source: 1792. This article provides for the opening of galleries in the House and Senate so that their proceedings can be observed by the public, except when the welfare of the state requires secrecy. This provision has not been interpreted by the New Hampshire Supreme Court. [ART.| 9. [REPRESENTATIVES ELECTED EVERY SECOND YEAR; APPORTIONMENT OF REPRESENTATIVES.] There shall be in the legislature of this state a house of representatives, biennially elected and founded on principles of equality, and representation therein shall be as equal as circumstances will admit. The whole number of representatives to be chosen from the towns, wards, places, and representative districts thereof established hereunder, shall be not less than three hundred seventy-five or more than four hundred. As soon as possible after the convening of the next regular session of the legislature, and at the session in 1971, and every ten years thereafter, the legislature shall make an apportionment of representatives according to the last general census of the inhabitants of the state taken by authority of the United States or of this state. In making such apportionment, no town, ward or place shall be divided nor the boundaries thereof altered. Source: 1784. Amended 1877, 1942, and 1964. The size of the house of representative is set in this article to range between 375 and 400, with elections to be held every two years on the basis of equal apportionment. No town, ward, or place may be divided in the creation of a district, unless a division has been locally approved under Part 2, Article 11-a. The 1784 version of this article was patterned after the 1780 Massachusetts Constitution. Representation in 1784 was based on ratable polls, persons entitled to vote on the basis of property, rather than on population. A town with 150 ratable male polls was allowed one representative, and another representative was allowed for each additional 300 polls. This type of unequal apportionment favored the small towns. In 1877, the basis of representation for one representative was changed from 150 ratable polls to 600 inhabitants, based on the most recent census. Twice as many inhabitants were still required for each additional representative. This was sometimes referred to as the "two for one" requirement. Changing the basis from ratable polls to population in 1877 was important because the use of ratable polls as the basis for representation was prone to abuse by towns that manipulated their property values to inflate the number of representatives to which they were entitled. Levitt v. Attorney General (1962) 104 N.H. 100.

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The numerical cap on the membership of the House was adopted in 1942, to keep the body from continually increasing as the state population increased. In 1964, the "two for one" provision allowing unequal apportionment was eliminated after the United States Supreme Court made it clear that unequal representation was unconstitutional under the Equal Protection Clause in the Fourteenth Amendment to the federal constitution.6 The wording of Article 9 was changed to require that representation had to be "as equal as circumstances will admit." The "last general census" referred to in the article is the most recent federal decennial census, as there is no general state census. The legislature makes a reapportionment following each federal census. Standard for Apportionment Opinions of the New Hampshire Supreme Court interpreting this article have dealt with various issues relating to apportionment. An apportionment may meet the standard of being "as equal as circumstances will admit," even if the legislature "rounds up" or "rounds down" fractional representative numbers for districts involved, when the division of the population figure by the number of seats in the representative district yields a fractional number. Population trends may be legitimately considered by the legislature in making a decision on whether to "round up" or "round down" an impossible fractional representative figure. McGovern v. Secretary of State (1993) 138 N.H. 128. Because the last general census is the standard for apportionment, if a section of a town is incorporated as an independent town after a general census, it cannot have a representative for itself until after the next general census. Opinion of the Justices (1963) 105 N.H. 125. Permissible Districts Redistricting after a federal census is normally done by the legislature. However, in 2002, for the first time in history, the New Hampshire Supreme Court took on the task of redistricting the New Hampshire House of Representatives and the Senate. The legislature had passed a redistricting plan in 2002, based on the 2000 federal census, but the governor vetoed the plan, and the legislature failed to override the veto. Because the legislature had failed to act and the then-current districts were unconstitutional under the one person/one vote standard, and it was necessary for the new districts to be in place for the 2002 elections, the court accepted the duty of establishing a plan for house districts in Burling v. Chandler (2002) 148 N.H. 143 and for senate districts in Below v. Gardner (2002) 148 N.H. 1. The court decided the case under state constitutional standards, holding that the one person/one vote standard for the house of representatives under Part 2, Articles 9 and 11, was at least as protective as the corresponding federal standard.


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In order to meet its goal of "substantial equality" of population among the districts, the court adopted a plan that made significant changes to the house districting system because the court found that past districting plans "had not given the fundamental democratic principle of one person/one vote the attention and weight to which it is entitled." Burling v. Chandler 148 N.H. 143. In its redistricting plan, the court used single-member and multimember districts, but not floterial districts. The court held that floterial districts, as they had been used in New Hampshire, had led to voting right inequities under the New Hampshire Constitution. Floterial districts, as well as single-member and multimember districts, had been used in New Hampshire for several decades. A floterial district is a legislative district that includes several separate districts that, by themselves, would not be entitled to additional representation, but whose conglomerate population entitles the district to another legislative seat. Geographic boundaries of a floterial district overlap those of another district in the same representative body. In 1982, a federal court held that 17 floterial districts in the 1982 New Hampshire legislative apportionment plan were valid under the federal constitution. Boyer v. Gardner (D.N.H. 1982) 540 F.Supp. 624. However, in Burling, the New Hampshire Supreme Court rejected the use of floterial districts and declined to follow the methodology used in Boyer to calculate the deviation from the one person/one vote principle under the New Hampshire Constitution. The provision that prohibits the changing of boundaries of towns, wards, or places was interpreted in 1965 when the legislature was considering a bill to redraw the ward lines in the city of Nashua to reflect population changes since the 1960 census. At the same time, the legislature was about to make a reapportionment based on population because of the amendment to the article in 1964 requiring equal apportionment. The court directed the legislature to first make the reapportionment, after which it could then subdivide equitably among the new Nashua wards the total number of representatives allocated to Nashua under the reapportionment act. It could not change ward lines when making the apportionment, because the apportionment had to be based on the previously conducted census that resulted in population figures for wards based on the existing ward lines. The court placed weight on the wording of the final sentence of the article before its amendment in 1964 that had prohibited the alteration of boundaries of towns and wards "so as to increase the number of representatives to which such town or city may be entitled by the last preceding census." Opinion of the Justices (1965) 106 N.H. 233. [ART.| 9-a. [LEGISLATIVE ADJUSTMENTS OF CENSUS WITH REFERENCE TO NON-RESIDENTS.) The general court shall have the power to provide by statute for making suitable adjustments to the general census of the inhabitants of the state taken by the authority of the United States or of this state on account of non-residents temporarily residing in this state. Source: 1960.

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This article was adopted in 1960 to allow the legislature to adjust federal census figures to exclude nonresidents from populations counted by the census, primarily students attending colleges and military personnel stationed in the state. The Voters' Guide pamphlet in 1960 explained that, beginning in 1950, these temporary residents were counted in the federal census, resulting in certain cities and towns having higher populations than they would have had without the temporary nonresidents. In 1971, the legitimacy of the article was tested when the legislature was engaged in the reapportionment process following the 1970 census. The court held that the provision did not violate the federal constitutional guarantee of equal protection. The court held it was permissible under this article for the legislature to adjust federal census figures to exclude military personnel stationed in the state and college students as long as they were bona fide nonresidents and the legislature used a reliable and systematic method. This adjustment, however, had to be done at the time of the general census. An actual census in a city or town or an estimate of population changes by the office of state planning could not be used in between federal censuses as a basis for adjusting population figures to be used in reapportionment or redistricting. Opinion of the Justices (1971) 111 N.H. 146. Rounding up or rounding down of impossible fractional representative figures during the apportionment process did not implicate this article, because it was not an adjustment to the general census. McGovern v. Secretary of State (1993) 138 N.H. 128. [ART.] 10. [REPRESENTATION OF SMALL TOWNS.] (Repealed in 1889) From 1784 to 1877 this article provided that small towns would be grouped together to make the required 150 ratable polls for a representative and that the location of the annual meeting would rotate among the towns. In 1877, it was amended to refer to one representative for every 600 inhabitants, and biennial instead of annual meetings. When the article was repealed in 1889, its provisions were incorporated into Article 11. [ART.] 11. [SMALL TOWNS; REPRESENTATION BY DISTRICTS.] When any town, ward, or unincorporated place, according to the last federal decennial census, has less than the number of inhabitants necessary to entitle it to one representative, the legislature shall form those towns, wards, or unincorporated places into representative districts which contain a sufficient number of inhabitants to entitle each district so formed to one or more representatives for the entire district. In forming the districts, the boundaries of towns, wards and unincorporated places shall be preserved and the towns, wards and unincorporated places forming one district shall be reasonably proximate to one another. The legislature shall form the representative districts at its next session after approval of this article by


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the voters of the state, and thereafter at the regular session following every decennial federal census. Source: 1784. Amended 1792, 1877, 1889, 1942, and 1964. This article deals with representation in the house from "small towns." The legislature must create districts that combine towns, wards, and unincorporated places, when a town, ward, or place has insufficient population for a representative. When creating a district, the legislature must preserve the boundaries of towns, wards, and unincorporated places, unless the town, ward, or place has approved its division under Article 11-a. The article has been amended over the years to reflect different solutions to the problem of how to treat small towns with fewer than the number of polls or inhabitants required for one representative. The 1784 solution was to provide a voting district by grouping or "classing" towns together to obtain the minimum number for a representative while rotating the location of elections among the towns. In 1784, the minimum number was 150 "ratable polls," which was changed to 600 inhabitants in 1877. The formula for representation in the house was weighted to favor small towns by requiring twice as many in ratable polls (later population) for the second and each additional representative. Some small towns were dissatisfied with classing of towns and the rotation of the annual meetings under Article 10, because voters complained about travel problems in getting to elections and not having a representative from their own town. In 1889, the "proportional representation" solution was adopted, which gave each town the right to elect its own representative, but only for a proportional amount of time. Because there were many small towns in the state, proportional representation resulted in no representation in the house for many years at a time for many of these towns. In 1942, when the size of the legislature was limited to between 375 and 400 in Part 2, Article 9, the weighting of representation in favor of small towns was increased by allowing each town, no matter how small, to have a representative in the house at least once every 10 years. At the same time, the requirement of 600 inhabitants for one representative was deleted, because the amount necessary would be set by the legislature in keeping with the setting of 400 as the maximum size of the house. Many towns were entitled to only part-time representation. For example, according to a Concord newspaper, in 1956 there were 108 towns with part-time representation.7 In 1964, to comport with decisions by the United States Supreme Court, the issue was resolved in favor of representation for everyone, all of the time, by the creation of voting districts for the purposes of representation. The legislature has considerable latitude in deciding what to include in a district, but must preserve the boundaries of towns, wards, and unincorporated places, unless a division has been approved by local referendum under Article 11-a (adopted in 1978 to allow towns, wards, or unincorporated places to be divided when forming a district after approval by local referendum). These entities, when combined in a district by the legislature, must be "reasonably proximate" to each other.

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In 1971, the court held that this article would not be violated if a reapportionment and redistricting for members of the house of representatives were to provide for some multimember and some single-member districts, or all multi-member districts but with differing numbers of members, or districts composed of towns or wards in more than one county, provided each person's vote was approximately equal to that of any other person. Opinion of the Justices (1971) 111 N.H. 146. Although the legislature has not chosen to do so, it could cross county lines when forming a representative district. [ART.] 11-a. [DIVISION OF REPRESENTATIVE DISTRICTS.]

TOWN,

WARD

OR

PLACE;

Notwithstanding Articles 9 and 11, a law providing for an apportionment to form representative districts under Articles 9 and 11 of Part Second may divide a town, ward or unincorporated place into two or more representative districts if such town, ward or place, by referendum requests such division. Source: 1978. This article was added to the constitution in 1978, after having first been rejected in 1976. Articles 9 and 11 of Part 2 did not permit the dividing of a town or city ward into separate representative districts, so, before Article 11-a was adopted, all the representatives for a large town or a large city ward were atlarge representatives; that is, each represented the entire district. The 1980 federal census was approaching, and with the growing population of the state, the Voters' Guide for the 1976 election speculated that a large town, such as Salem, would have perhaps as many as 20 at-large representatives. The requirement in this article for a local referendum is consistent with New Hampshire's traditional sympathy for local control. The court has not interpreted this article. [ART.] 12. [BIENNIAL ELECTION OF REPRESENTATIVES NOVEMBER.]

IN

The members of the house of representatives shall be chosen biennially, in the month of November, and shall be the second branch of the legislature. Source: 1784. Amended 1877. This article sets the frequency and timing of elections for the house of representatives. The corresponding article for senators is Part 2, Article 27. The 1784 version of this article was patterned after the 1780 Massachusetts Constitution, but specified a different month of election. Both states held annual elections at that time. The reference to the "second branch of the legislature" completed the logic in former Part 2, Article 28, which referred to the senate as the "first branch of the legislature." The article was amended in 1877 to change the time of state elections from March to November, which was the case in nearly all other states. Elections


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were made biennial instead of annual, to be consistent with the change in 1877 from annual sessions to biennial sessions. Financial considerations, as well as the belief that the business of the legislature could be accomplished by meeting every two years, supported the change to biennial sessions. New Hampshire had held annual legislative sessions for its first 100 years, and the public was concerned about the rising cost of holding a session every year. Biennial elections were retained when the legislature returned to annual sessions in 1984. There have been no court decisions interpreting this article. |ART.| 13. [QUALIFICATIONS OF ELECTORS.] (Repealed in 1976) This article used to specify the qualifications for voters for representatives, namely, that these qualifications were the same as for voters for senators and that voters were qualified to vote in the district in which they dwelled. The article was repealed in 1976 when an amendment dealing with voting rights was adopted, one part of which amended Part 2, Article 30 making domicile rather than residence a qualification for voting. [ART.] 14. [REPRESENTATIVES, HOW ELECTED, QUALIFICATIONS OF. | Every member of the house of representatives shall be chosen by ballot; and, for two years, at least, next preceding his election shall have been an inhabitant of this state; shall be, at the time of his election, an inhabitant of the town, ward, place, or district he may be chosen to represent and shall cease to represent such town, ward, place, or district immediately on his ceasing to be qualified as aforesaid. Source: 1784. Amended 1852, 1877, 1956, and 1964. This article states the residency requirement for members of the house of representatives. A member must have been a resident of the state for at least two years and a resident of the town, ward, place or district he or she represents at the time of election. If a member moves out of his or her district, the member no longer fulfills the residency requirement for office and ceases to be a representative. This article originally contained both a property requirement and a "religious test" for house members. The article in 1784 was patterned after the 1780 Massachusetts Constitution, although Massachusetts had no religious requirement. The New Hampshire requirement that a house member have an estate of £100, half of which had to be held in freehold, in the place he was chosen to represent, was deleted in 1852, at the same time that property requirements for senators and the governor were deleted. It was not until 1877 that the requirement that a member be "of the Protestant religion" was deleted, after the deletion had been proposed to the voters on three previous occasions, but rejected, in 1792, 1851, and 1852. It is questionable whether the "religious

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test" was ever enforced. In 1868 the New Hampshire Supreme Court stated that the religious tests for representative, senator, and governor "have always been, in fact, a dead letter, and the only regret is that they have not been long ago removed by amendment, so as to free our constitution from this just objection." Hale v. Everett (1868) 53 N.H. 9.8 Minor amendments in 1958 and 1964 changed "parish" to "town" and added "district." There are no New Hampshire Supreme Court cases interpreting this article. [ART.] 15. [COMPENSATION OF THE LEGISLATURE.) The presiding officers of both houses of the legislature, shall severally receive out of the state treasury as compensation in full for their services for the term elected the sum of $250, and all other members thereof, seasonably attending and not departing without license, the sum of $200 and each member shall receive mileage for actual daily attendance on legislative days, but not after the legislature shall have been in session for 45 legislative days or after the first day of July following the annual assembly of the legislature, whichever occurs first; provided, however, that, when a special session shall be called by the governor or by a 2/3 vote of the then qualified members of each branch of the general court, such officers and members shall receive for attendance an additional compensation of $3 per day for a period not exceeding 15 days and the usual mileage. Nothing herein shall prevent the payment of additional mileage to members attending committee meetings or on other legislative business on nonlegislative days. Source: 1784. Amended 1792, 1889, 1960, and 1984. This article sets legislative compensation and requires that legislators receive travel mileage payments. The amount of compensation, $200 per biennium, except for presiding officers, is set in the article, but the amount of mileage payments is set by statute. However, legislators do not have to actually travel on a particular day when the legislature meets to receive mileage payments, although they must attend the legislative session on that day. Members may also receive mileage payments for "nonlegislative" days when they attend committee meetings or are involved in other legislative business. When a special session is called by the legislature by a two-thirds vote of each house, or the governor, the special session mileage rates apply, with a 15-day limit. The 1784 constitution required the state to pay a legislator's travel expenses, but the responsibility for wages was borne by the "town, parish or place" the legislator represented. This was based on the 1780 Massachusetts Constitution. In 1792, the article was amended to require the state to pay a legislator's wages as well as the travel expenses, but the constitution set no specific amount for compensation. Legislators were paid a per diem rate, set by statute. Then, in 1887, railroad lobbyists were blamed for prolonging the session to 158 days, beginning in June and continuing into November.9 When the constitutional convention of 1889 met, the memory of this session was fresh in the minds of


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the public and the members of the convention. In the 1887 session, each legislator had received $474 in wages because, under the constitutional formula, they received $3 a day, including Sundays, even though they only worked three or four days a week. This amount was found by the public to be excessive. There was much discussion by the convention about what would be a proper salary. The $200 amount was proposed by a delegate who calculated that it was almost equal to the result of multiplying 67 days times the then-current rate of $3 a day. The average annual session length over the last 20 years had been about 38 days, so allowing for 67 days over a two-year period cut a little time from the average session. The per diem rate set for special sessions in the 1889 amendment was equal to the statutory per diem rate in 1887. Limiting the amount of compensation was intended to limit the length of the legislative session. Opinion of the Justices (1949) 95 N.H. 533. The limit on the number of legislative days for which mileage could be paid was set in 1960. The 1959 legislative session was the longest in the state's history, beginning January 7, 1959, and ending September 7, 1959. The president of the 1956 constitutional convention recalled the convention to consider an amendment to limit the length of legislative sessions, because of the wide publicity and general public disgust with the expense and length of the 1959 legislative session. Because there was no limitation on the length of a session, legislators received mileage payments for each session day attended, no matter how long the session lasted. The amendment limited mileage payments to 90 legislative days. When biennial sessions were changed to annual sessions in 1984, the number of mileage days was equally divided over the two years of the biennium, so mileage was limited to 45 days each year. The issue of the amount of legislative compensation has been revisited frequently since 1889. Proposed amendments have appeared on the ballot a number of times, but have always been rejected by the voters. The rejected amendments took several different approaches. One set a per diem rate of $15 plus a travel allowance at the state employee rate (1964), another allowed the legislature to set the salary for the next legislature by a two-thirds vote of each house with reimbursement for reasonable expenses (1968), another created a legislative compensation commission to establish a salary and expense allowance every two years (1970), while still another would have based legislative pay on the salary of the lowest grade state classified employee and allowed mileage at the state employee rate (1976). New Hampshire legislators remain by far the lowest paid legislators in the country. The court clarified in 1949 that this article allows only compensation and mileage to be paid to legislators, and not personal expenses. The court interpreted specific language and intent of the article to preclude any payment of expenses of legislators because the article then provided that the $200 salary was to be paid "exclusive of mileage." Opinion of the Justices (1949) 95 N.H. 533. The wording "exclusive of mileage" has since been removed from the article, but the underlying intent presumably has not changed.

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Most of the court decisions under this article have evaluated various mileage schedules created by the legislature. The mileage rate need not exactly reflect the cost of travel, but must bear a "reasonable relation to the cost of travel." Opinion of the Justices (1949) 95 N.H. 533. A graduated mileage scheme was sustained by the court in Opinion of the Justices (1949) 95 N.H. 552, but mileage rates of $4.00 for the first mile and $0.05 for each successive mile thereafter were prohibited because such rates were neither compensation nor mileage under this article. In rejecting a scheme in 1961 that would have given legislators a minimum $5 payment for daily mileage ($0.25 per mile for the first 45 miles and $0.08 per mile for all miles in excess of 45 miles, with a proviso that mileage would be computed on a minimum basis of 20 miles per round trip), the court held that the constitution did not allow the legislature to use mileage payments to increase its compensation, even though the $200 compensation was "grossly inadequate" and "antediluvian." Monitor Publishing Co. v. Hill (1961) 103 N.H. 397. In 1961 it appeared important to the court that the proposed mileage rate was higher than mileage rates allowed in any state, and federal employees only received $.012 per mile. [ART.] 16. [VACANCIES IN HOUSE, HOW FILLED.| All intermediate vacancies, in the house of representatives may be filled up, from time to time, in the same manner as biennial elections are made. Source: 1784. Amended 1877. This article provides the manner of filling vacancies in the house of representatives, specifying that such elections are to be done in the same manner as biennial elections. The article has been amended once, in 1877, to change a reference from "annual" to "biennial," when annual elections were changed to biennial elections. There are no cases interpreting this article. [ART.] 17. [HOUSE TO IMPEACH BEFORE THE SENATE.] The house of representatives shall be the grand inquest of the state; and all impeachments made by them, shall be heard and tried by the senate. Source: 1784. This article is patterned after a provision in the 1780 Massachusetts Constitution. The procedure for impeachment of a state officer is that the house first conducts an investigation and may then vote to bring formal charges of impeachment. The case is then tried by the senate under Part 2, Article 38. Under this article, Superior Court Judge Woodbury Langdon was impeached in 1790 for failing to regularly attend court, although his impeachment never proceeded to trial before the senate because he resigned his office to take an appointment as a federal judge. In 2000, Supreme Court Chief Justice David Brock was impeached for allegedly interfering in a lower-court case, lying to


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investigators from the house of representatives, soliciting comments from a fellow supreme court judge about that judge's own divorce case, and allowing judges to participate in a case from which they had been disqualified. Justice Brock was acquitted of all charges by the senate and remained on the court.10 In the course of the Brock impeachment investigation, the supreme court judicial conduct commission challenged a rule adopted by the house judiciary committee that prevented the counsel for the commission from attending depositions of supreme court justices and court employees. The supreme court noted that the house of representatives had delegated its authority under this article to the house judiciary committee to conduct the impeachment investigation and to draft the rules under which its investigation would be conducted. The court recognized the authority of the legislative branch to impeach judges under this article, but affirmed its jurisdiction under Part 2, Article 72-a to hear matters arising in the course of an impeachment proceeding. The court, however, did not make a decision regarding the rule because it determined that the issue raised by the judicial conduct commission in this case was a nonjusticiable political question, not threatening the integrity of its results or directly threatening any legal right cognizable by the court. In re Judicial Conduct Commission (2000) 145 N.H. 108. [ART.] 18. [MONEY BILLS TO ORIGINATE IN HOUSE.] All money bills shall originate in the house of representatives; but the senate may propose, or concur with amendments, as on other bills. Source: 1784. This article requires that only the house of representatives may initiate bills that impose new means of raising money. This provision is similar to a provision in the 1776 temporary constitution and the same as a provision in the Massachusetts Constitution of 1780. Cases arising under this article have dealt with the meaning of the term "money bill." In 1901, the court recognized that it had been the practice of the state since 1784 to interpret "money bill" to mean direct taxation upon the people. An income tax bill, for example, would have to originate in the house, but a bill making an appropriation of state money {Opinion of the Justices (1959) 102 N.H. 80), imposing or increasing a license fee {Opinion of the Justices (1959) 102 N.H. 80), or imposing a direct tax on parimutuel pools or a payment in lieu of taxes {Opinion of the Justices (1976) 116 N.H. 351) did not constitute a money bill. [ART.] 18-a. [BUDGET BILLS.] All sections of all budget bills before the general court shall contain only the operating and capital expenses for the executive, legislative and judicial branches of government. No section or footnote of any such budget bill shall contain any provision which establishes, amends or

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The New Hampshire State Constitution repeals statutory law, other than provisions establishing, amending or repealing operating and capital expenses for the executive, legislative and judicial branches of government. Source: 1984.

This article prohibits the legislature from inserting footnotes or other sections in budget bills that do not relate to the operating and capital expenses of government. Footnotes or sections are allowed that establish, amend, or repeal statutes relating to operating or capital expenses for state government. This article was adopted in 1984 and was designed to prevent the state budget from being used to carry unrelated pieces of legislation through the legislative process. Because the governor has no line item veto, when the state budget comes to the governor at the end of the fiscal year, the governor must sign or veto the budget as a whole. Failure to enact a budget on time can result in a state fiscal crisis. Before this article was adopted, footnotes in budget bills had been over 65 pages in 1981 and 57 pages in 1983, dealing with a wide variety of subjects not directly related to the budget. The committee report adopted by the 1984 constitutional convention referred to "the infamous footnotes which have appeared in increasing numbers in recent years . . . [which] have enacted midnight department head pay raises, unconstitutional minimum business profits taxes, [and] Sunday dog racing in Seabrook contrary to the town's wishes."11 The year after the article was adopted, the house of representatives requested the court to examine the biennial budget bill to see if any of its provisions violated Article 18-a. Opinion of the Justices (1985) 126 N.H. 490. Several principles of application were clear in the opinion. First, budget sections may attach certain conditions to expenditures or make fiscal events contingent upon certain happenings, so long as those sections do not effectuate a change in general statutory law. For example, different spending levels could be authorized at the state prison, depending on the number of inmates. Second, the prohibitions of Article 18-a apply when a provision of law is suspended, even though the article refers only to establishing, amending, or repealing statutory law. A suspension of law is a temporary repeal. Therefore, the legislature could not temporarily suspend a statute dictating the distribution of sweepstakes revenues. Third, when the phrase "notwithstanding any other provision of law" precedes a provision, it is not allowable if there is a conflicting provision of general statutory law, whether or not the law is specifically mentioned, but it is allowable if the provision relates only to an expenditure or fiscal matter. The opinion also clarified that the authorization of bond issues did not violate Article 18-a. This article applies only to "budget bills." When the article was first adopted, the New Hampshire legislature met in biennial session and adopted a biennial budget, so the reference in the article clearly applied to the biennial operating and capital budget bills. After 1984, however, the legislature met in annual rather than biennial sessions, but still adopted a biennial budget. In the second year of the budget, the legislature usually enacted a supplemental budget bill to


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amend the biennial operating budget. The question arose as to whether the article applied to an omnibus appropriations bill, enacted as a companion bill to the supplemental budget. In Warburton v. Thomas (1992) 136 N.H. 383, the court held that Article 18-a arguably applied to the supplemental operating budget bill, a bill designed to make adjustments to the state biennial budget, but that it did not apply to an omnibus appropriations bill. The omnibus appropriations bill did not have the "content, structure, or essential characteristics to qualify as a budget bill" under the article and its primary purpose was not to revise the financial program established by the biennial budget. |ART.[ 19. [ADJOURNMENT.] The house of representatives shall have the power to adjourn themselves. Source: 1784. Amended 1948 and 1966. Under this article, the house may suspend its session to another time. The senate has a corresponding power in Part 2, Article 36. This article was the same in 1784 as the Massachusetts 1780 constitutional provision that gave the house the power to adjourn, but not for more than two days at a time. In 1948, the time limit on adjournment was extended from two to five days. Prior to the amendment, the practice of the legislature was to adjourn from Thursday to Tuesday, and, to get around the two-day requirement, the legislature had to meet in mock session on Saturdays with just a few people in attendance. In 1966, an amendment removed any limitation on the ability of the house to adjourn itself. Part of the constitutional question in 1966 related to annual legislative sessions and was invalidated by the court, but the court held that the adjournment part of the amendment was still valid because that part of the question was not confusing. Gerber v. King (1967) 107 N.H. 495. The power of the house to adjourn itself under this article is independent of the power of the governor and council to adjourn the house and senate under Part 2, Article 50, when the two houses so desire. The adoption of the 1966 amendment allowing the house to adjourn itself did not by implication remove the power of the governor and council under Part 2, Article 50 to call the general court into session, if the welfare of the state so required. Opinion of the Justices (1975)115 N.H. 686. [ART.] 20. [QUORUM, WHAT CONSTITUTES.] A majority of the members of the house of representatives shall be a quorum for doing business: But when less than two-thirds of the representatives elected shall be present, the assent of two-thirds of those members shall be necessary to render their acts and proceedings valid. Source: 1784. This article states the quorum requirement for the house. The quorum requirement is a majority of the house. However, whenever fewer than two-

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thirds of the members are present, a supermajority of two-thirds of the members present and voting is required for any official action of the house. The question of whether the quorum was to be computed on the basis of members elected or members active and qualified was settled when the legitimacy of a law was questioned in 1914 because a majority of members elected did not vote on the passage of the law. The computation of the number required for a quorum is based not on the total number of members who were elected, but on the number of members elected who are then qualified and recognized as constituting the body of the house for the transaction of business. The latter number does not include members who have died, resigned, or been disqualified since their election. Pollard v. Gregg (1914) 77 N.H. 190. Implicit in the constitutional principle that the house and senate cannot act in the absence of a quorum is the requirement that the legislative authority of the general court cannot be exercised except by a quorum of both bodies. Therefore, the legislature may not delegate its lawmaking authority to a smaller legislative body, as in a bill allowing "legislative veto" of administrative rules that would have given legislative committees in the house and senate the authority to review and disapprove of administrative rules. Opinion of the Justices (1981) 121 N.H. 552. [ART.l 21. [PRIVILEGES OF MEMBERS OF LEGISLATURE.] No member of the house of representatives, or senate shall be arrested, or held to bail, on mesne process, during his going to, returning from, or attendance upon, the court. Source: 1784. This article, dating from 1784, was based on the 1780 Massachusetts Constitution. It recognizes the importance of the legislative process by protecting members of the house from arrest and detention while they are going to, returning from, or attending a session of the general court. A member of the house sued the house speaker for false arrest and imprisonment, after the speaker sent the house sergeant-at-arms to arrest and compel the member to be present in the house for house roll-call votes. The member claimed that Article 21 prevented his arrest by the sergeant-at-arms, but the court held that this was not the type of arrest that this article was intended to prevent. Keefe v. Roberts (1976) 116 N.H. 195. [ART.] 22. [HOUSE TO ELECT SPEAKER AND OFFICERS, SETTLE RULES OF PROCEEDINGS, AND PUNISH MISCONDUCT.] The house of representatives shall choose their own speaker, appoint their own officers, and settle the rules of proceedings in their own house; and shall be judge of the returns, elections, and qualifications, of its members, as pointed out in this constitution. They shall have authority to punish, by imprisonment, every person who shall be guilty of disrespect to the house, in its presence, by any disorderly and contemptuous behavior, or by


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threatening, or illtreating, any of its members; or by obstructing its deliberations; every person guilty of a breach of its privileges, in making arrests for debt, or by assaulting any member during his attendance at any session; in assaulting or disturbing any one of its officers in the execution of any order or procedure of the house; in assaulting any witness, or other person, ordered to attend, by and during his attendance of the house; or in rescuing any person arrested by order of the house, knowing them to be such. Source: 1784. Amended 1792.

This article declares the house of representatives' authority to determine internal matters of procedure: to select its speaker and other officers, to determine its own rules of procedure, and to judge the elections and qualifications of its members. It also gives the house the authority to punish anyone who interferes with house business or house members when attending to house business. The corresponding provision for the senate is Part 2, Article 35. This provision was based in 1784 on a provision in the 1780 Massachusetts Constitution. In 1792 it was amended to add that the house shall be judge of the returns, elections, and qualifications of its members. The cases decided under this article have dealt with the authority of the house to determine the election of its members and speaker and to make its rules of proceedings. It was early settled that the house of representatives and not the court had jurisdiction to determine the returns (officially attested election results), elections, and qualifications of members of the house. In Bingham v. Jewett (1891) 66 N.H. 382, the house was held to be the judge of all questions of law or fact presented by the returns, so that the court had no authority to advise the clerk of the house as to which names should appear on the roll of the house. In Opinion of the Justices (1971) 111 N.H. 175, the court ruled that it would violate this article if the legislature passed a law requiring that the speaker of the house be elected by a roll-call vote. The authority of the house to elect its speaker could not be infringed upon by the action the senate would have to take by acting on the bill, and could not be governed by a statute. No statute can impinge on the house's authority to determine its own rules of proceedings. A statute could not require the house to give notice to persons before a house session who would be affected by petitions brought before the house. Opinion of the Court (1885) 63 N.H. 625. However, the house cannot use the authority to make its own rules of proceedings to determine a matter that affects both branches of the legislature. The court held in Opinion of the Justices (1959) 102 N.H. 320 that the house could not submit mileage claims that differed from the standard mileage table set by statute because the matter concerned members of both branches of the legislature. In Bednar v. King (1970) 110 N.H. 475, a petitioner challenged the validity of votes taken by the house and senate to place a proposed amendment to the constitution on the ballot. The procedure under Part 2, Article 100 requires a three-fifths vote of the entire membership of each house. The court held that each house had the authority to determine the procedure by which the three-

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fifth's vote was obtained, and that even violation of its own rules of procedure in the process of arriving at the constitutionally required "three-fifths vote" would not invalidate the result of the vote. The speaker of the house had taken a division vote on the ordering of the resolution to third reading, but not upon third reading and final passage, as house rules required. The court found that the division vote that did take place constituted a valid adoption of the concurrent resolution. There have been no cases interpreting the authority under this article of the house to punish persons who interfere with its business or its members. When a demonstrator interrupted the inauguration ceremonies of Governor John H. Sununu in 1987 in Representatives Hall, the person was charged with disorderly conduct under the state criminal code. State v. Comley (1988) 130 N.H. 688. This was not a proceeding of the house, but it would seem likely that a person would be charged under the state criminal code for interfering with house proceedings or house members. [ART.J 23. [SENATE AND EXECUTIVE HAVE LIKE POWERS; IMPRISONMENT LIMITED.] The senate, governor and council, shall have the same powers in like cases; provided, that no imprisonment by either, for any offense, exceeds ten days. Source: 1784. Amended 1792. This article provides that the senate, and governor and council, have the same authority as the house under Article 22 to punish anyone who interferes with their business or members when attending to business of the senate or governor and council. Imprisonment is limited to ten days. The 1780 Massachusetts constitutional provision on which this article was based limited imprisonment to 30 days. In 1792 the article was amended only to substitute "governor" for "president." As with Article 22, there have been no cases interpreting this article. [ART.] 24. [JOURNALS AND LAWS TO BE PUBLISHED; YEAS AND NAYS; AND PROTESTS.) The journals of the proceedings, and all public acts of both houses, of the legislature, shall be printed and published immediately after every adjournment or prorogation; and upon motion made by any one member, duly seconded, the yeas and nays, upon any question, shall be entered, on the journal. And any member of the senate, or house of representatives, shall have a right, on motion made at the time for that purpose to have his protest, or dissent, with the reasons, against any vote, resolve, or bill passed, entered on the journal. Source: 1784. Amended 1792 and 1966.


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This article requires each house to keep and publish a journal, which is the official record of each house's legislative acts and proceedings. It also provides that a member, when duly seconded, may request a roll-call vote which will be entered in the journal. A member also has the right to have his or her dissent against any vote, resolution, or bill entered in the journal. The article in 1784 required the printing and publication of the journal of each house, and stated the right of a single member to ask for a roll call. An amendment in 1792 permitted a member to enter a protest or dissent with reasons in the journal, and required that "public acts" as well as "proceedings" had to be published. Another amendment in 1966 required that requests for a roll-call vote had to be "duly seconded." The 1966 amendment resulted from the use of roll calls by members to delay legislative proceedings. A single member in the house of representatives could effectively filibuster by calling for successive roll calls, which in 1966, before the installation of electronic voting, took about 25 minutes each. The house and the senate each in their rules define the meaning of "duly seconded." In 2001, ten house members were required to second a request for a roll-call vote; in the senate only a single member was required. The journals are a means for the public and the courts to ascertain what was actually done, not only for the purpose of allowing for public scrutiny of legislative action but also to assure legislative conformity to constitutional requirements. Bezio v. Neville (1973) 113 N.H. 278.The house and senate have the inherent right to correct their journals. Opinion of the Justices (1959) 102 N.H. 230. Cases decided under this article have been concerned with questions relating to the validity of acts after their publication. A published act is presumed to be valid, but the presumption may be overcome by evidence from the journals that the legislation was not constitutionally enacted. The court, after examination of the journals, found an act in one case to be invalid because there was no record that the house had concurred with a senate amendment that appeared in the published act {Opinion of the Justices (1857) 35 N.H. 579) and, in another case, because the requisite quorum of senators was not present for a required vote {Opinion of the Justices (1959) 102 N.H. 230). The nullification of a vote for lack of a quorum, however, does not necessarily result in the nullification of an act. The court nullified a vote of the senate to return a bill to second reading because the senate journal showed that a requisite quorum of the senate had not voted on this action, but the bill was still valid because the bill had, without the invalidated acts, complied with the necessary steps for enactment. Bezio v. Neville {\913) 113 N.H. 278. Under this article, a member may ask for a roll call on any "question" to be entered in the journal. "Question" as used in this sense, does not include the election of the house speaker, so that a member does not have the right to ask for a roll call vote on the election of the speaker. Opinion of the Justices (1971) 111 N.H. 175.

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[ART.] 25. [SENATE, HOW CONSTITUTED.] The senate shall consist of twenty-four members. Source: 1784. Amended in 1792, 1877, 1889, and 1974.

This article sets the size of the senate at 24 members. The senate originally consisted of 12 members, enlarged to 24 in 1877. The article used to contain information relating to the terms of senators (amended in 1792 and 1889), but this was deleted in 1974. Largely because of the wide disparity between the size of the senate and the size of house, and the corresponding amount of power wielded by a single senator, since 1877 an increase in the size of the senate has been proposed to the voters three times (in 1912, 1964, and 1974). None of these amendments was ratified by the voters. The Voters' Guide in 1964 emphasized the point that, when only 16 senators were present, it took only nine votes to pass or defeat a measure. Another frequent argument has been that the senate has a large volume of work, and that each senator must serve on several major committees, some of which may meet at the same time. This article has not been interpreted by the court. [ART.] 26. [SENATORIAL DISTRICTS, HOW CONSTITUTED.! And that the state may be equally represented in the senate, the legislature shall divide the state into single-member districts, as nearly equal as may be in population, each consisting of contiguous towns, city wards and unincorporated places, without dividing any town, city ward or unincorporated place. The legislature shall form the single-member districts at its next session after approval of this article by the voters of the state and thereafter at the regular session following each decennial federal census. Source: 1784. Amended 1792, 1877, and 1964.

The rules governing senatorial districts are set by this article. The legislature must divide the state into 24 single-member districts, equally based on population, after each decennial federal census without dividing any town, city ward, or unincorporated place, unless a division has been approved by local referendum under Article 26-a. The 1784 version of this article was based on the 1780 Massachusetts Constitution, Part 2, Chapter 1, Section 2, Article I. Under their constitutions, election districts in both Massachusetts and New Hampshire were to be based on the proportion of public taxes paid by the district. In 1784, the 12 senators were elected according to county, until the legislature provided for districts: five from Rockingham County, two each from the counties of Strafford, Hillsborough, and Cheshire, and one from Grafton. The legislature had the authority to district the state into between five and ten senatorial districts based on the proportion of public taxes paid by each district, but did not exercise this authority. In 1792, the constitution was amended to require the legislature to create 12 senatorial districts based on the proportion of


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public taxes paid by each district. The number of districts was increased to 24 in 1877 when the size of the senate was increased. Representation continued to be apportioned on the basis of taxable property until 1964, when this method, which was in violation of the Fourteenth Amendment as interpreted by recent United States Supreme Court decisions, was finally changed to population. Before the article was amended in 1964, New Hampshire was the only state that based its districts on property instead of population. The discussion under Part 2, Article 9 describes the situation in 2002 when the New Hampshire Supreme Court, rather than the legislature, redistricted the house of representatives and the senate. In both of the 2002 cases dealing with redistricting, the court decided the cases under state constitutional standards, holding that the one person/one vote standard for the house of representatives under Part 2, Articles 9 and 11, and the phrase in Part 2, Article 26 requiring senate single-member districts to be "as nearly equal as may be in population," were at least as protective of citizens' voting rights as the corresponding federal one person/one vote standard. Below v. Gardner (2002) 148 N.H. 1; Burling v. Chandler (2002) 148 N.H. 143. In Below, the court rejected various plans that did not rest entirely on federal census data and applied the constitutional principle of one person/one vote along with the requirement that the senate be comprised of single-member districts without dividing any town, city ward or unincorporated place. [ART.] 26-a. [DIVISION OF TOWN, WARD OR PLACE; SENATORIAL DISTRICTS.] Notwithstanding Article 26 or any other article, a law providing for an apportionment to form senatorial districts under Article 26 of Part Second may divide a town, ward or unincorporated place into two or more senatorial districts if such town, ward or place by referendum requests such division. Source: 1978. This article allows the legislature to divide a town, city ward, or unincorporated place when forming senatorial districts, in spite of the prohibition in Article 26, as long as the town, city ward, or unincorporated place passes a referendum requesting the division. The corresponding article for the house is Part 2, Article 11-a. By the 1970s, because of the prohibition on dividing towns and city wards, it had become difficult to apportion senate districts equally on the basis of population in towns and city wards with a large population. A constitutional amendment was adopted in 1978 to allow such division, if requested by a local referendum, for both house and senate districts. A similar amendment affecting only the house was on the 1976 ballot, but did not pass. There have been no court decisions interpreting this article.

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[ART.] 27. [ELECTION OF SENATORS.) The freeholders and other inhabitants of each district, qualified as in this constitution is provided shall biennially give in their votes for a senator, at some meeting holden in the month of November. Source: 1784. Amended 1792 and 1877. This article sets the time for senatorial elections as the general November election, every two years. In 1784, senators were elected annually at town meetings in March. This provision was reworded but not substantively changed in 1792. In 1877, elections were changed from annual to biennial, and the time for elections was changed from March to November. The reference to "freeholders" is archaic. No cases have interpreted this article, although the article was referenced in a 1914 case holding that a blank ballot was not a vote as used in this article. Attorney General v. Bickford (1914) 77 N.H. 433. [ART.] 28. [SENATORS, HOW AND BY WHOM CHOSEN; RIGHT OF SUFFRAGE.) (Repealed in 1976) The article in 1784 provided that male inhabitants 21 years of age and older who paid their own poll tax were eligible to vote for senators. People qualified to vote for senators were also qualified to vote for representatives, the governor, and councilors. The article was amended in 1792 and 1877. In 1958, the reference to "male" inhabitants as being the only ones qualified to vote was removed. This article was repealed in 1976 because its provisions relating to elections and voter qualifications were covered by other articles. [ART.] 29. [QUALIFICATIONS OF SENATORS.] Provided nevertheless, that no person shall be capable of being elected a senator, who is not of the age of thirty years, and who shall not have been an inhabitant of this state for seven years immediately preceding his election, and at the time thereof he shall be an inhabitant of the district for which he shall be chosen. Should such person, after election, cease to be an inhabitant of the district for which he was chosen, he shall be disqualified to hold said position and a vacancy shall be declared therein. Source: 1784. Amended 1852, 1877, and 1976. This article sets age and residency requirements for senators. A person must be at least 30 years old and have been an inhabitant of the state for at least seven years immediately preceding election, and be an inhabitant of the district he or


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she represents. A senator is disqualified from office if he or she moves out of the district. This article in 1784 required that a senator own property in his own right of the value of £200 and be of the Protestant religion. The property requirement was deleted in 1852 and the so-called religious test in 1877. The article was patterned after the 1780 Massachusetts Constitution that required senators to be at least 30 years of age, be a resident for at least five years, and hold property in the value of £300 freehold or £600 personal. In 1976, this article was amended to prohibit senators from continuing to represent their districts when they moved out of their districts, bringing the practice in line with the rules governing representatives and executive councilors. The amendment provided that senators who moved out of their districts were disqualified, and that a new election would be held. The requirement that a senator be an "inhabitant" of this state requires that the person be a citizen. A person who had resided in the state for over seven years but was not naturalized as a citizen until 1920 challenged a determination that he was not qualified to run for senate in 1922. The court looked at the interpretation of the court in previous decisions of "inhabitant," and determined that "inhabitant" in this article, in the two preceding articles, and in the three succeeding articles meant "citizen," and not all residents. Barker v. Young (1922) 80 N.H. 447. John H. Sununu unsuccessfully challenged the seven-year residency requirement under this article in federal court in 1974. Sununu v. Stark (D.N.H. 1974) 383 F. Supp. 1287, affd 420 U.S. 958 (1975). The United States Court of Appeals for the First Circuit held that the state residency requirement did not infringe on Sununu's rights under the First Amendment, the Equal Protection Clause, or the fundamental right to interstate travel. The court held that the state had a compelling interest in imposing durational residency requirements upon those who seek state elective office. [ART.] 30. [INHABITANT DEFINED.] And every person, qualified as the constitution provides, shall be considered an inhabitant for the purpose of being elected into any office or place within this state, in the town, or ward, where he is domiciled. Source: 1784. Amended 1958 and 1976. This article defines "inhabitant" for the purposes of voting or being elected. The article in 1784 was based on the 1780 Massachusetts Constitution and provided that a person was an inhabitant, for the purposes of electing and being elected, "where he dwelleth and hath his home." In 1958, an amendment updated the article by changing a reference to "parish and plantation" to "ward." In 1976, "inhabitant" was redefined to be based on a person's domicile rather than a person's residency. The Commission to Study the Constitution in 1974 recommended the change from "residence" to "domicile" because it had a more definite legal meaning.

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According to the commission, "domicile" could be defined as a permanent place of abode to which one intended to return, while "residence" had a more transitory quality. The 1976 amendment was more a clarification than a change. The case of Felker v. Henderson (1917) 78 N.H. 509 interpreted the meaning of residency in the article long before the 1976 amendment to mean the place where a person had settled in a residence with an intention to stay there indefinitely, notwithstanding the fact that he entertained a floating intention to move to another place at some indefinite time in the future. This case was later cited by the court to express the traditional concept of domicile—intention to remain, coupled with actual residence. Bisson v. University of New Hampshire (1990)133N.H. 353. The article does not apply to offices that are not elective {Opinion of the Justices (1927) 83 N.H. 589). [ART.J 31. [INHABITANTS OF UNINCORPORATED PLACES; THEIR RIGHTS, ETC.] (Repealed in 1976) This article defined the voting rights of inhabitants of unincorporated places and the time of their annual meetings. Assessors rather than selectmen were responsible for collecting and returning votes. The article was part of the 1784 constitution and had been amended in 1877 to be consistent with the change in time of annual elections and in 1958 to refer to "wards" instead of "plantations" and "parishes." The article at the time of its repeal contained an obsolete requirement that inhabitants of unincorporated places had to assess taxes upon themselves before they could vote. The denial of the right to vote for nonpayment of taxes had been found unconstitutional under the Fourteenth Amendment in 1966 by the United States Supreme Court. Harper v. Virginia State Board of Elections (1966) 383 U.S. 663. Removal of the denial of the right to vote for nonpayment of taxes under this article had been on the ballot in 1968 but had not been adopted. [ART.] 32. [BIENNIAL MEETINGS, HOW WARNED, GOVERNED, AND CONDUCTED; RETURN OF VOTES, ETC.] The meetings for the choice of governor, council and senators, shall be warned by warrant from the selectmen, and governed by a moderator, who shall, in the presence of the selectmen (whose duty it shall be to attend) in open meeting, receive the votes of all the inhabitants of such towns and wards present, and qualified to vote for senators; and shall, in said meetings, in presence of the said selectmen, and of the town or city clerk, in said meetings, sort and count the said votes, and make a public declaration thereof, with the name of every person voted for, and the number of votes for each person; and the town or city clerk shall make a fair record of the same at large, in the town book, and shall make out a fair


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attested copy thereof, to be by him sealed up and directed to the secretary of state, within five days following the election, with a superscription expressing the purport there of. Source: 1784. Amended 1792, 1889, 1958, 1974, and 1976. This article details the duties of the moderator and town clerk regarding the announcement and transmission of certain election results. The selectmen have the duty of "warning" or posting a warrant for elections for governor, councilor, and senator. The moderator must announce the results of votes cast by qualified voters in the presence of the selectmen "in open meeting." Requiring that the announcement be made in open meeting allows other interested parties present to object to an incorrect vote, thus allowing the correction to be made immediately, when it is most easily done. The town clerk must make an attested copy of the voting results declared by the moderator and transmit them to the secretary of state. The 1784 version of this article was patterned after the 1780 Massachusetts Constitution. It required the selectmen to preside at meetings at which senators were elected, and to sort and count the votes at the same meeting in the presence of the town clerk who recorded the votes. A copy of the record was to be given by the town clerk to the sheriff of the county, to be by him delivered to the secretary of state within a certain time frame. This article was reworded by the revision of 1792 and amended in 1889 to comport with the change in time of the legislative session from June to January. Further amendments in 1958, 1974, and 1976 were also of a technical nature, relating to references to parishes, city clerks, and the timing of the notification to the secretary of state. Only a few cases have been decided under this article. An 1891 case clarified that town clerks may be compelled by judicial process to perform their duty of making correct returns of votes declared by the moderator. Bingham v. Jewett (1891) 66 N.H. 382. Two cases in 1873 related to the election of representative to United States Congress. These cases held that town clerks had no authority to correct or change results of a vote announced by a moderator. A clerk had to make "a true record and return" of the election results given to him by the moderator, and the governor and council in counting the votes had no authority to determine who was legally elected, only to count the votes. Bell v. Pike (1873) 53 N.H. 473. The meaning of the clerk's making "a fair record" was making a record of the moderator's public declaration. Opinion of the Justices (1873)53 N.H. 640. [ART.] 33. [SECRETARY OF STATE TO COUNT VOTES FOR SENATORS AND NOTIFY PERSONS ELECTED.] And that there may be a due meeting of senators and representatives on the first Wednesday of December, biennially, the secretary of state shall, as soon as may be, examine the returned copy of such records; and fourteen days before the first Wednesday of December, he shall issue his summons to such persons as appear to be chosen senators and

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The New Hampshire State Constitution representatives, by a plurality of votes, to attend and take their seats on that day. Source: 1784. Amended 1792, 1877, 1889, 1912, 1968, 1974, and 1976.

This article requires the secretary of state to examine the official copies of voting records for senators and representatives as soon as possible after the November election and notify persons elected two weeks before the organizational meeting of the legislature on the first Wednesday of December. The 1784 version of this article was patterned after the 1780 Massachusetts Constitution. It was amended in 1877, 1889, and 1974 to comport with other changes in the constitution relating to the timing of elections and meeting of the legislature. In 1912, the requirement of election by majority was changed to election by plurality. The responsibility for examination of the returns and notification of those elected was moved in 1976 from the governor and council to the secretary of state. Minor amendments were also made in 1792 and 1968. In the context of an election for representative to Congress, the court in 1877 issued an opinion confirming its 1873 decision under Article 32 that the returns to be computed were the town clerk's official returns and that the constitution required that the governor and council (who were then responsible for examining the returns under Article 33) had no authority to change voting results announced by the moderator and returned by the town clerk. The court held that the governor and council were constitutionally required to ascertain not who were chosen, but who appeared, by the returns filed by the town clerks, to be chosen state senators. A statute required the governor and council to count votes for representative to Congress in the same manner they counted votes for state senator. Therefore, the governor and council had no authority to reject any votes for representative to Congress, but were required to compute the votes that the returns showed were declared by the moderators, when ascertaining who was elected. Opinion of the Court (1877) 58 N.H. 621. [ART.[ 34. [VACANCIES IN SENATE, HOW FILLED.] And in case there shall not appear to be a senator elected, by a plurality of votes, for any district, the deficiency shall be supplied in the following manner, viz. The members of the house of representatives, and such senators as shall be declared elected, shall take the names of the two persons having the highest number of votes in the district, and out of them shall elect, by joint ballot, the senator wanted for such district; and in this manner all such vacancies shall be filled up, in every district of the state and in case the person receiving a plurality of votes in any district is found by the Senate not to be qualified to be seated, a new election shall be held forthwith in said district. All vacancies in the senate arising by death, removal out of the state, or otherwise, except from failure to elect, shall be filled by a new election by the people of the district upon the requisition of the governor and council, as soon as may be after such vacancies shall happen. Source: 1784. Amended 1792, 1889, 1912, and 1968.


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This article sets forth how an election is resolved if no candidate for senator for a district receives a plurality of the votes. If a person elected senator is not qualified, as determined by the senate, or if there is a vacancy in the office of senate, the governor and council must call a new election. The 1784 version of this article was almost the same as the corresponding provision in the 1780 Massachusetts Constitution, and provided for the resolution of senatorial elections, if no senator had been elected by a majority of votes in a district. In 1889, the article was enlarged to provide for a new election in case of a vacancy in a senate seat. A critical change was made by the amendment of 1912, requiring the resolution of an election by the members of the house and senate when a senator was not elected by a plurality, rather than a majority, of votes in the district. The 1968 amendment requiring a new election, if a person who was elected was found to be disqualified, was adopted after the senate in 1965 had found persons from two districts to be disqualified because they did not meet the constitutional residency requirements, and had proceeded to seat the persons with the next highest number of votes. (See Brown v. Lamprey (1965) 106 N.H. 121). The court has not interpreted this article. |ART.] 35. [SENATE, JUDGES OF THEIR OWN ELECTIONS.] The senate shall be final judges of the elections, returns, and qualifications, of their own members, as pointed out in this constitution. Source: 1784. This article corresponds to Part 2, Article 22, giving the house the authority to be judges of the returns, elections, and qualifications of its members. This article, patterned after the 1780 Massachusetts Constitution, dates from 1784. Court decisions dating back at least to 1875 affirm the authority of the senate to make final decisions regarding the election of its members under this article, from which there is no appeal. Two cases dealt with the 1875 election for state senate. Both the house of representatives and the senate asked the court for its opinion regarding the election in which seats were contested in two districts. In one case, the court determined that the senate had examined the returns of votes for senators, determined who had received a majority, and had seated the members summoned by the governor, and there could be no appeal from the senate's decision. Opinion of the Justices (1875) 56 N.H. 570. In the other case, the court declined to give an answer to a request for an opinion from the house asking whether the governor had the authority to issue a summons to senatorselect from two senate districts. The court declined because it recognized that the governor was discharging his constitutional duty under Article 33 and that only the senate, under Article 35, had the constitutional authority to revise an act of the governor regarding a senate election. Opinion of the Justices (1875) 56 N.H. 574.

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The authority of the senate under this article has been reaffirmed by the court on several occasions. In 1894, the court held that a determination by the senate regarding a senate election is a final determination of the facts. Attorney General v. Sands (1894) 68 N.H. 54. In Petition of Dondero (1947) 94 N.H. 236, the court held that decisions of the senate regarding the election of its members are final under the authority of this article, absent any denial of due process of law. In 1965, the actions of the senate were challenged when it determined that persons in two senate districts were ineligible to be seated in the senate because they did not meet the constitutional residency requirement and then seated the persons with the next highest number of votes. The court upheld the senate's actions to seat the new members, without having a special election, because it was under the senate's authority under Article 35 to be the final judge of the election of its own members. Brown v. Lamprey (1965) 106 N.H. 121. However, Article 34 was amended in 1968 to require a new election if the person receiving a plurality of the votes was found to be unqualified, so this type of situation could not happen again. [ART.] 36. [ADJOURNMENT.] The senate shall have power to adjourn themselves, and whenever they shall sit on the trial of any impeachment, they may adjourn to such time and place as they may think proper although the legislature be not assembled on such day, or at such place. Source: 1784. Amended 1792, 1948, and 1966. Under this article, the senate has the power to adjourn itself. If conducting an impeachment trial, the senate may adjourn to another time and place, even if the legislature is not assembled there. The house's corresponding power to adjourn is in Part 2, Article 19. The article in 1784 was the same as in the 1780 Massachusetts Constitution. Both constitutions provided for a two-day limit on adjournments. The proviso relating to impeachment was added in 1792, when other provisions regarding impeachment were added to the constitution. In 1948, the adjournment period was increased from two days to five days, and in 1966 the limitation on adjournment was removed completely. The changes in 1948 and 1966 were made in conjunction with the changes regarding adjournment by the house. The power of the senate to adjourn itself under this article is independent of the power of the governor and council to adjourn the house and senate under Part 2, Article 50, when the two houses so desire. The adoption of the 1966 amendment allowing the senate to adjourn itself did not by implication remove the power of the governor and council under Part 2, Article 50 to call the general court into session, if the welfare of the state so requires. Opinion of the Justices (1975)115 N.H. 686.


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[ART.] 37. [SENATE TO ELECT THEIR OWN OFFICERS; QUORUM.] The senate shall appoint their president and other officers, and determine their own rules of proceedings: And not less than thirteen members of the senate shall make a quorum for doing business; and when less than sixteen senators shall be present, the assent of ten, at least, shall be necessary to render their acts and proceedings valid. Source: 1784. Amended 1792 and 1877. This article states the power of the senate to elect its own officers and determine its own rules. The article also states the quorum requirements for the senate. A majority, or 13, is the quorum required for doing business, except that when fewer than 16 senators (two-thirds of the total senators) are present, a supermajority often is required for the senate to take a valid action. This article is similar to provisions in the 1780 Massachusetts Constitution. An amendment in 1792 added the "president" to the officers to be appointed by the senate. Under the 1784 constitution, the chief executive of the state was called the "president" and presided over the senate. The duty of the chief executive to preside over the senate was removed by the revision of 1792, at the same time that the title of the chief executive was changed from "president" to "governor." When the size of the senate was increased from 12 to 24 in 1877, corresponding changes were made in this article to the quorum requirement. The quorum requirement is a mandatory requirement. Action by the senate when a quorum was lacking served to invalidate an act in Opinion of the Justices (1959) 102 N.H. 230. In that case, the senate journal showed that less than a majority of the senate was present for a vote on the third reading and final passage of a bill. The act was invalidated by the court, even though it had been signed by the governor and engrossed as chapter 166 of the Laws of 1959. In a 1973 case, Bezio v. Neville (1973) 113 N.H. 278, a vote was constitutionally defective and the particular actions of the senate were found to be a nullity when the journal did not indicate how many members of the senate were present when the vote was taken. In Bezio, however, the act was not invalidated because the bill had otherwise complied with the necessary steps for enactment. The quorum requirement was cited by the court in a different context in 1981. Because a quorum is required for doing business, the legislature could not pass a law delegating its authority to approve or reject proposed administrative rules to standing committees of the house and senate. Opinion of the Justices (1981) 121 N.H. 552. In Bednar v. King (1970) 110 N.H. 475, a petitioner challenged the validity of votes by the house and senate to place a proposed amendment to the constitution on the ballot. The procedure under Part 2, Article 100 requires a three-fifths vote of the entire membership of each house. The court held that the senate had the authority to determine the procedure by which the three-fifth's vote was obtained, and that even violation of its own rules of procedure in the process of arriving at the constitutionally required three-fifth's vote would not

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invalidate the result of the vote. The senate journal showed that the proposal had received the required three-fifths vote three different times in the course of the proceedings in the senate, so that various irregularities in senate procedures that violated senate rules did not invalidate the senate vote. The president pro tern of the senate is one of the "other officers" mentioned in this article, and does not take on the constitutional duty of the senate president of succeeding to the office of the governor when the governor is incapacitated or out of state. Opinion of the Justices (1935) 87 N.H. 489. [ART.] 38. (SENATE PROCEEDING.]

TO

TRY

IMPEACHMENTS;

MODE

OF

The senate shall be a court, with full power and authority to hear, try, and determine, all impeachments made by the house of representatives against any officer or officers of the state, for bribery, corruption, malpractice or maladministration, in office; with full power to issue summons, or compulsory process, for convening witnesses before them: But previous to the trial of any such impeachment, the members of the senate shall respectively be sworn truly and impartially to try and determine the charge in question, according to evidence. And every officer, impeached for bribery, corruption, malpractice or maladministration in office, shall be served with an attested copy of the impeachment, and order of the senate thereon with such citation as the senate may direct, setting forth the time and place of their sitting to try the impeachment; which service shall be made by the sheriff, or such other sworn officer as the senate may appoint, at least fourteen days previous to the time of trial; and such citation being duly served and returned, the senate may proceed in the hearing of the impeachment, giving the person impeached, if he shall appear, full liberty of producing witnesses and proofs, and of making his defense, by himself and counsel, and may also, upon his refusing or neglecting to appear hear the proofs in support of the impeachment, and render judgment thereon, his nonappearance notwithstanding; and such judgment shall have the same force and effect as if the person impeached had appeared and pleaded in the trial. Source: 1784. Amended 1792.

This article details the function of the senate in an impeachment proceeding. The senate acts as a court of impeachment, if the house of representative issues articles of impeachment against a state officer. The article spells out certain due process rights of an impeached person, including notice and an opportunity to defend himself or herself. The original version of this article in the 1784 constitution was virtually the same as a similar provision in the 1780 Massachusetts Constitution. New Hampshire allowed impeachment for misconduct or maladministration, whereas Massachusetts required misconduct and maladministration. The amendment in 1792 added bribery or corruption as reasons for impeachment, detailed more of the impeachment process, and provided basic due process rights to a person accused of an impeachable crime.


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In 2000, the first impeachment trial in New Hampshire was held. New Hampshire Supreme Court Justice David Brock was impeached by the house of representatives under Part 2, Article 17 (see discussion under Article 17 for the reasons for the impeachment). Chief Justice Brock was acquitted of all charges by the senate and continued to serve on the court. Only the legislature has the power of impeachment. The New Hampshire Supreme Court has the power to impose alternative judicial remedies and disciplinary action, such as the suspension of a judge upon a showing of abuse or misconduct, but does not have the power to remove a judge from office by an impeachment proceeding. In re Mussman (1972) 112 N.H. 99. [ART.] 39. [JUDGMENT ON IMPEACHMENT LIMITED.] Their judgment, however, shall not extend further than removal from office, disqualification to hold or enjoy any place of honor, trust, or profit, under this state, but the party so convicted, shall nevertheless be liable to indictment, trial, judgment, and punishment, according to the laws of the land. Source: 1784. This article limits the effect of a conviction of impeachment. A person may be removed from office and disqualified from holding state office, but not fined or sentenced to imprisonment unless under a separate legal proceeding. This article is the same as a provision of the 1780 Massachusetts Constitution. There have been no cases interpreting this article. [ART.] 40. (CHIEF JUSTICE TO PRESIDE ON IMPEACHMENT OF GOVERNOR.] Whenever the governor shall be impeached, the chief justice of the supreme judicial court, shall, during the trial, preside in the senate, but have no vote therein. Source: 1792. This article requires that, if the governor is impeached, the chief justice of the New Hampshire Supreme Court will preside over the proceedings before the senate, but cannot vote on the impeachment. This article was inserted in 1792 at the same time that Article 38 was amended to provide for a more detailed mode of proceeding in an impeachment case. Impeachment is strictly a legislative process. The participation of the chief justice in this capacity in an impeachment trial does not change the proceeding from a legislative one into a judicial one. In re Mussman (1972) 112 N.H. 99.

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[ART.] 41. [GOVERNOR, SUPREME EXECUTIVE MAGISTRATE.] There shall be a supreme executive magistrate, who shall be styled the Governor of the State of New Hampshire, and whose title shall be His Excellency. The executive power of the state is vested in the governor. The governor shall be responsible for the faithful execution of the laws. He may, by appropriate court action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right, by any officer, department or agency of the state. This authority shall not be construed to authorize any action or proceedings against the legislative or judicial branches. Source: 1784. Amended 1792 and 1966. This article creates the position of governor, vests in the governor the executive power of the state, and gives the governor broad authority for execution of the laws. The article states the inherent power of the governor and council to direct and regulate the internal workings of the executive department. Opinion of the Justices (1976) 116 N.H. 406. The 1784 version of this article, which consisted of the first sentence when then referred to "President," was modeled after the 1780 Massachusetts Constitution. In 1792, "Governor" was substituted for "President." All of the article after the first sentence was added by an amendment in 1966. The intent of the 1966 amendment was to vest in the governor strengthened executive power and responsibility, to be exercised within the dictates of the constitution and the lawful enactments of the legislative branch. This responsibility, according to the court, was to impose a duty upon the executive to carry out legislative mandates as well as to enforce constitutional requirements. Opinion of Justices (1973) 113 N.H. 141. The amendment also gave the governor greater responsibility for the control of administrative action. State ex rel Thomson v. State Board of Parole (1975) 115 N.H. 414. The cases interpreting this article have explored the type of situation in which the governor can bring an action to "enforce compliance with any constitutional or legislative mandate" and the limits of the governor's executive powers under this article in conjunction with other constitutional articles. Most of the cases have dealt with conflicts between the executive and legislative branches. The court has held that under this article, which gives the governor the authority to pursue court action against state agencies that have failed to comply with the law, the governor had standing to challenge the legality of the parole board's decision to grant parole to certain individuals. State ex rel. Thomson v. State Board of Parole (1975) 115 N.H. 414. The broad scope of the governor's executive powers was emphasized in Barry v. King (1965) 106 N.H. 279. An executive councilor called for an investigation of the commissioner of health and welfare by the governor and council, and the commissioner refused to answer questions concerning the


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investigation without first having the questions in advance and in writing. The court noted the governor's authority under Article 41, as implemented under Part 2, Article 62, that makes the governor and council responsible for "ordering and directing the affairs of state." It was within the power of the governor and council to demand that the commissioner verbally respond to questions from the governor and council regarding an investigation of state departmental business. The governor's powers under this article also extend to the ability to create, by executive order and independent of the legislature, state agencies for the purpose of receiving federal funds. Opinion of the Justices (1978) 118 N.H. 582. The governor, however, cannot use his powers to frustrate valid legislative enactments by issuing executive orders contravening legislative intent. The governor, therefore, could not issue executive orders in conflict with legislative intent expressed in appropriations regarding the hiring of new personnel and the purchase of automobiles. {O'Neil v. Thomson (1974) 114 N.H. 155) or access confidential information beyond that authorized by a statute regulating confidentiality of tax records {Opinion of the Justices (1973) 113 N.H. 141). The governor and council had the authority to regulate appointment and employment within the executive branch and could exclude elected officials (consisting primarily of members of the legislature) from such appointment or employment. However, the governor and council did not have the authority to adopt a conflict of interest policy restricting the employment of legislators outside the executive branch. Opinion of the Justices (1976) 116 N.H. 406. [ART.] 42. [ELECTION OF GOVERNOR, RETURN OF VOTES; ELECTORS; IF NO CHOICE, LEGISLATURE TO ELECT ONE OF TWO HIGHEST CANDIDATES; QUALIFICATIONS FOR GOVERNOR.] The governor shall be chosen biennially in the month of November; and the votes for governor shall be received, sorted, counted, certified and returned, in the same manner as the votes for senators; and the secretary shall lay the same before the senate and house of representatives, on the first Wednesday following the first Tuesday of January to be by them examined, and in case of an election by a plurality of votes through the state, the choice shall be by them declared and published. And the qualifications of electors of the governor shall be the same as those for senators; and if no person shall have a plurality of votes, the senate and house of representatives shall, by joint ballot elect one of the two persons, having the highest number of votes, who shall be declared governor. And no person shall be eligible to this office, unless at the time of his election, he shall have been an inhabitant of this state for 7 years next preceding, and unless he shall be of the age of 30 years. Source: 1784. Amended 1792, 1852, 1877, 1889, 1912, and 1982.

This article covers many points relating to the election of the governor: the governor's residency and age requirements, qualifications of voters for

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governor, the governor's term of office and time of election, and procedures to be followed in case no person receives a plurality of the votes for governor. In 1784, this article was similar to a provision in the 1780 Massachusetts Constitution, in that both contained residency, religious, and property requirements and provided for the resolution by the house and senate of a gubernatorial election in which no one received a majority of votes. New Hampshire also included the requirement that the governor be at least 30 years of age, and that the "president," as the governor was then called, preside over the senate. The article has been amended numerous times. The amendment of 1792 deleted specific requirements for the handling of votes at town meeting and the requirement that the "president" preside over the senate. The requirement that the governor own property in the value of £500, one-half of which had to constitute a freehold, was deleted in 1852, at the same time property requirements were deleted for representatives and senators. Amendments in 1877 replaced annual elections with biennial elections, changed the time of the election from March to November, and deleted the requirement that the governor be of the Protestant religion. The amendment of 1889 changed the time the secretary of state was to lay the votes for governor before the house and senate from June to January, to comport with the change in time for the convening of the legislative session. In 1912, the requirement for a candidate for governor, councilor, or senator to be elected by a majority of the votes was changed to a plurality. In the 50 years before the amendment to provide for election by a plurality instead of majority, the legislature had had to resolve the election for governor eight times.12 Finally, in 1982, the time for the secretary of state to lay the votes before the house and senate was adjusted from the first Wednesday of January to the Wednesday after the first Tuesday to avoid the possibility of requiring the legislature to assemble on New Year's Day. No New Hampshire Supreme Court cases have interpreted this article. The constitutional residency requirement for governor was challenged in the United States District Court for the District of New Hampshire by Carmen C. Chimento, a man who wanted to run for governor but failed to meet the residency requirement. His claim that the requirement violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution was unsuccessful. Chimento v. Stark (D.N.H. 1973) 353 F. Supp. 1211, affd, 414 U.S. 802 (1975). [ART.] 43. [IN CASES OF DISAGREEMENT GOVERNOR TO ADJOURN OR PROROGUE LEGISLATURE; IF CAUSES EXIST, MAY CONVENE THEM ELSEWHERE.] In cases of disagreement between the two houses, with regard to the time or place of adjournment or prorogation, the governor, with advice of council, shall have a right to adjourn or prorogue the general court, not exceeding ninety days at any one time, as he may determine the public good may require, and he shall dissolve the same on the first Wednesday


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of December biennially. And, in cases whereby dangers may arise to the health or lives of the members from their attendance at the general court at any place, the governor may direct the session to be holden at some other the most convenient place within the state. Source: 1784. Amended 1792, 1889, 1974, and 1980. This article provides that the governor, with the advice of council, may act to adjourn or prorogue (extend the adjournment of) the legislature for up to 90 days, if the two houses cannot agree, and may direct that the legislative session be held at another place if there is a danger to the health or lives of members. The governor is required to dissolve the legislature on the first Wednesday of December every two years. This article should be read in conjunction with Part 2, Article 50, which also deals with the governor's authority of adjournment and prorogation. This article in 1784 was based on provisions of the 1780 Massachusetts Constitution. Amendments have served to make the article consistent with other changes to the constitution and to update it. In 1792 references to "president" were changed to "governor," and "place" of adjournment was added. In 1889, the time for dissolving the legislature was changed from June to January, because the time of the legislative session was changed. In 1974, the article was amended to provide that the legislature would be dissolved on the first Wednesday of December, so the legislature could accomplish its organizational actions before the January session began. In 1980, the archaic reference to "infectious distemper" was removed as a reason for the governor to convene the legislature to another place. The 1974 constitutional convention unsuccessfully proposed elimination of the provision giving the governor and council authority to prorogue the recess of the legislature for up to 90 days, when the senate and the house disagreed regarding the time or place of prorogation. The Voters' Guide for the February 1976 ballot explained that this "confusing . . . provision" allows the governor and council to forcibly extend a legislative recess so that the legislature cannot meet for up to 90 days, even if the legislature thinks it is advisable to meet. The same question was proposed and defeated again in 1984. This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 44. [VETO TO BILLS.] Every bill which shall have passed both houses of the general court, shall, before it becomes a law, be presented to the governor, if he approves, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it; if after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with such objections, to the other house, by which it shall likewise be reconsidered, and, if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of persons, voting for or

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The New Hampshire State Constitution against the bill, shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it unless the legislature, by their adjournment, prevent its return, in which case it shall not be a law. Source: 1792.

This article describes the manner in which a bill becomes a law after it is passed by both houses of the legislature, the procedures for a gubernatorial veto, and the manner in which the legislature may override the governor's veto. The chief executive of New Hampshire had no authority to veto a bill under the 1784 constitution. This article was added in 1792 and was, according to Opinion of the Justices (1950) 96 N.H. 517, closely modeled after the Pennsylvania Constitution, although it is also similar to the veto provision in the 1780 Massachusetts Constitution. Proposals to give the governor an item veto appeared on the constitutional amendment ballot in 1912, 1920, and 1930, but were all rejected at the polls. The process described in this article is part of the essential process that must be followed for a bill to become a law. The court advised the governor and council that a procedure outlined in a law for the enactment of a governmental reorganization plan that was inconsistent with the requirements of this article was unconstitutional in Opinion of the Justices (1950) 96 N.H. 517. In the context of determining the validity of legislation, court cases have interpreted a number of the technical aspects of this article, including what constitutes seasonable presentment of a bill to the governor, how the governor's five-day period to act on and return a bill to the legislature should be calculated, and whether the two-thirds vote required for a veto override is two-thirds of the entire membership of each house or two-thirds of the members present and voting. The presentation of a bill to the governor's executive office, when this was settled usage, was sufficient to qualify for presentation of the bill to the governor, even though the governor was temporarily absent from the office until the next day. Opinion of the Justices (1864) 45 N.H. 607. A bill is normally complete and final when it is transmitted to the governor, and the counting of the five-day period begins on the day of that transmission. However, the governor may waive at least some defects in presentation. The court held that the fact that the wrong version of a bill was presented to the governor three days before the correct version was provided did not invalidate the presentation of the bill on the first occasion. In this case, in which the legality of the expenditure of funds in the budget bill was at issue, the governor filed a written statement with the secretary of state that he waived the presentation defect. Opinion of the Justices (1977) 117 N.H. 837. The constitution is silent as to the time for presentation of a bill to the governor {Opinion of the Justices (1965) 106 N.H. 402), but this article requires a governor who wishes to veto a bill to return the bill to the house of origin "within five days (Sundays excepted)" after its presentation. Cases have settled


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that the day on which the bill is presented to the governor is included when computing the five-day period within which a bill must be acted upon {Opinion of the Justices (1864) 45 N.H. 607) and that legal holidays, such as the Fourth of July, as well as Sundays, are excluded from the computation of the five-day period {Opinion of the Justices (1961) 103 N.H. 402). The duty of the governor to return the bill with his or her objections is performed when the governor or another proper person returns the bill and objections to the house in which the bill originated and gives notice to that house. The house to which the governor brings the bill and message cannot prevent the effect of the governor's action by refusing to receive them. Opinion of the Justices (1864) 45 N.H. 607. Adjournment other than final adjournment cannot prevent the return of a bill by the governor. A bill was effectively delivered to the house speaker's office, even though the house had adjourned for the day. Opinion of the Justices {1864) 45 N.H. 607. The last sentence of the article provides that a bill becomes a law if the governor does not return it within five days after its presentment to him, "unless the legislature, by their adjournment, prevent its return, in which case it shall not be a law." If a governor does not sign a bill during the five-day period and during that period the legislature adjourns, the governor is said to have exercised a "pocket veto," and the bill does not become law.13 If a governor approves and signs a bill, it does not matter if this is done after the legislature adjourns. Opinion of the Justices (1961) 103 N.H. 402. Normally, a bill must be presented to the governor before the legislature adjourns. Opinion of the Justices (1911) 76 N.H. 601. However, in 1965, a bill was presented to the governor after adjournment, signed, and found by the court to be valid. In this situation the bill was not presented to the governor in a timely way because of a clerical error that prevented the bill from being engrossed before the legislature adjourned, but the bill was presented within a reasonably short time after adjournment, and then signed by the governor within five days of presentation. The court noted that the clerical error was an honest mistake and the presentation of the bill was "seasonably made" and done "within a reasonably short time after final passage of the bill and legislative adjournment." The court cited cases based on the federal constitution validating bills presented to the President after the adjournment of Congress. Opinion of the Justices (1965) 106 N.H. 402. In 1992, the court considered a case in which members of the house of representatives challenged the long-standing veto override procedure of the house, which was to require two-thirds of the members present and voting in order to override a veto. The challengers contended that the constitution required a vote of two-thirds of the entire membership of each house to override a gubernatorial veto, as had been the practice in the senate since 1971. The court examined the intent of the framers of the article and looked at veto override cases over the previous 200 years, and found that Article 44 required, for both the house and the senate, only a vote of two-thirds of the members present and

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voting to override a veto, a quorum being present. Warburton v. Thomas (1992) 136 N.H. 383. [ART.] 45. [RESOLVES TO BE TREATED LIKE BILLS.] Every resolve shall be presented to the governor, and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill. Source: 1792. This article requires a "resolve" to be treated in the same manner as a bill in order to become law. It was added in 1792. In practice, this article applies only to joint resolutions of the house or senate, and not to simple or concurrent resolutions. Joint resolutions become law in the same manner as a bill, that is, they must be passed by both houses and signed by the governor. Joint resolutions appear in the session laws of the state, and are assigned a chapter number in the same manner as a bill that becomes law. A "simple" resolution is the resolve of only one body, while a "concurrent" resolution is a resolve passed by both bodies. Neither a simple nor concurrent resolution has the effect of law, and neither is signed by the governor. No cases have been decided to clarify this article, although in Opinion of the Justices (1950) 96 N.H. 517, it was suggested to the court that a concurrent resolution would not be a "resolve" within the meaning of Article 45, requiring presentation to the governor. The case did not require the court to rule on this point, so the court did not express a decision regarding it. [ART.] 46. [NOMINATION AND APPOINTMENT OF OFFICERS.) All judicial officers, the attorney general, and all officers of the navy, and general and field officers of the militia, shall be nominated and appointed by the governor and council; and every such nomination shall be made at least three days prior to such appointment; and no appointment shall take place, unless a majority of the council agree thereto. Source: 1784. Amended 1792, 1877, and 1976. This article describes the required procedures for the nomination and appointment, by the governor and council, of judicial officers, the attorney general, and certain military officers. New Hampshire does not have a navy, but the reference to "officers of the navy" remains. The adjutant general and other officers of the militia are appointed under this article. The 1784 version of this article was based on the 1780 Massachusetts Constitution. In 1792, minor changes were made, including changing "solicitorgeneral" to "solicitors," and shortening the minimum time for a nomination to precede an appointment from seven to three days. In 1877, solicitors and sheriffs were made elected officers under Part 2, Article 71, and removed from this article. In 1976, coroners were deleted from this article. The constitutional


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convention meeting in 1974 proposed the 1976 amendment after the court held that a statute passed by the legislature in 1973 giving the county commissioners the powers to appoint medical referees (who were, in legal effect, coroners) was unconstitutional. Opinion of the Justices (1974) 114 N.H. 89. The cases decided under this article have dealt with the issues of the amount of discretion the legislature has in prescribing the appointment process of state officers and who are judicial officers under this article. The legislature cannot make any changes to the selection process described in this article, although the legislature has considerable latitude in determining the method of appointment of nonconstitutional officers. Two cases decided under this article examine the interaction between the authority of the legislature under Part 2, Article 5 to "provide by fixed laws for the naming . . . [of] all civil officers" except those otherwise provided for by the constitution and the authority of governor and council to nominate and appoint officers under Part 2, Article 46. In Opinion of the Justices (1975) 115 N.H. 159, the court held that the authority of governor and council under Articles 46 and 47 did not restrict legislative authority under Article 5. Therefore, it was not unconstitutional for the legislature, which had the authority to delegate its authority to appoint a commissioner of health and welfare to the governor, to place a 60-day time limit on the appointment of the commissioner of health and welfare by the governor and provide that the appointment would be made by an advisory commission if the governor did not make an appointment within the prescribed time. In Opinion of the Justices (1977) 117 N.H. 398, the court held it would be unconstitutional for the legislature to enact a law that created a judicial selection commission that would screen judicial candidates, giving the governor authority to either appoint a person of his or her own choosing or to make an appointment within 60 days from the commission's candidates. This type of selection process encroached on the constitutional power of the governor by changing the selection process prescribed for judges in Article 46. The court has held that marital masters (attorneys appointed by the superior court who heard marital cases) were not appointed by the governor and council pursuant to Article 46 and therefore were not judicial officers within the meaning of Article 46. Similarly, the legislature could not constitutionally enact a statute providing that marital magistrates would be appointed by the superior court in the same manner as marital masters and exercise judicial powers. Opinion of the Justices (1986) 128 N.H. 17. Because marital masters were not judicial officers, the legislature could not grant them the power to impose penalties for civil contempt, because the power to punish for contempt of court is an inherent judicial power to be exercised only by judicial officers appointed under Article 46. Opinion of the Justices (Marital Masters' Contempt Powers) (1994) 138 N.H. 425. Members of the state board of claims were also found not to be judicial officers within the meaning of this article. Newell v. New Hampshire Division of Welfare (1988) 131 N.H. 88. A person who attempted to sue the state division of welfare instead of going to the board of claims argued that members of the board

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of claims, which heard personal injury claims made against the state, were judicial officers required to be appointed under Article 46. The court held that the members of the board were not judicial officers within the meaning of Article 46 because judicial power did not extend to actions against the state at common law and reference to judicial officers in the constitution did not govern their appointments. The members of the board of claims derived their jurisdiction from the statute passed by the legislature which made a limited waiver of the state's sovereign immunity. [ART.] 47. [GOVERNOR AND COUNCIL HAVE NEGATIVE ON EACH OTHER.] The governor and council shall have a negative on each other, both in the nominations and appointments. Every nomination and appointment shall be signed by the governor and council, and every negative shall be also signed by the governor or council who made the same. Source: 1792. This article provides the procedure for the making of appointments under Part 2, Article 46. Nominations and appointments to be made by the governor and council must be approved by both the governor and council. Both governor and council must sign for an appointment to be valid, and if either disapproves, the disapproval must be attested by signing. The court has held that this article does not restrict the authority of the legislature to provide for the naming of civil officers under Part 2, Article 5 but prescribes the procedure for appointment of officers authorized to be appointed by governor and council under Part 2, Article 46. The legislature, which had the authority to delegate its authority to appoint a commissioner of health and welfare to the governor, could constitutionally place a 60-day time limit on the appointment of the commissioner of health and welfare by the governor and provide that the appointment would be made by an advisory commission if the governor did not make an appointment within the prescribed time. Opinion of the Justices (197r5) 115 N.H. 159. [ART.] 48. [FIELD OFFICERS TO RECOMMEND, AND GOVERNOR TO APPOINT, COMPANY OFFICERS.] (Repealed in 1976) The article, dating from 1784, dealt with the nomination and appointment of company officers in the militia. It originally provided that the president (governor) had to appoint the company officers (captains and subalterns) recommended by the field officers. The article was amended in 1792 to allow field officers to recommend the company officers, but did not require the governor to appoint those recommended. In 1902 a further amendment provided that the nominees had to be examined and qualified by an examining board.


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[ART.) 49. [PRESIDENT OF SENATE, ETC., TO ACT AS GOVERNOR WHEN OFFICE VACANT; SPEAKER OF HOUSE TO ACT WHEN OFFICE OF PRESIDENT OF SENATE IS ALSO VACANT.] In the event of the death, resignation, removal from office, failure to qualify, physical or mental incapacity, absence from the state, or other incapacity of the governor, the president of the senate, for the time being, shall act as governor until the vacancy is filled or the incapacity is removed; and if the president of the senate, for any of the above-named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the house of representatives, for the time being, or in the case of the like incapacity of the speaker, upon the secretary of state, or in case of his like incapacity, upon the state treasurer, each of whom, in that order, shall act as governor, as hereinabove provided, until the vacancy is filled or the incapacity removed. Whenever a vacancy for the duration or remainder of the governor's term of office occurs before the commencement of the last year of such term, a special election for governor shall take place to fill the vacancy, as provided by law. Whenever the speaker of the house acts as governor, he shall act as such only until such time as the vacancy is filled or the incapacity removed in either the office of governor or of president of the senate, whichever occurs first. Whenever either the secretary of state or the treasurer acts as governor, he shall act as such only until such time as the vacancy is filled or the incapacity removed in the offices of governor, of president of the senate or of speaker of the house, whichever occurs first. While acting as governor under this article, the president of the senate, speaker of the house, secretary of state or state treasurer, as the case may be, shall be styled Acting Governor, shall not be required to take an additional oath of office, shall have and exercise all the powers, duties and authorities of, and receive compensation equal to that of the office of governor; and the capacity of each such officer to serve as president of the senate as well as senator, speaker of the house of representatives as well as representative, secretary of state, or state treasurer, as the case may be, or to receive the compensation of such office, shall be suspended only. While the governor or an acting governor is absent from the state on official business, he shall have the power and authority to transact such business. Source: 1784. Amended 1792, 1889, 1968, 1956, and 1984. This article has seven main points. First, it defines the situations when the governor's office is vacant. These situations are death, resignation, removal from office, failure to qualify, physical or mental incapacity, absence from the state, or other incapacity. Second, it spells out who may succeed the governor in such a situation. The progression for gubernatorial succession is president of the senate, speaker of the house, secretary of state, and state treasurer. Third, the article makes provision for a new election if a vacancy occurs in the office of governor before the beginning of the last year of the governor's term. Fourth, the article clarifies how long an acting governor is to serve in that capacity. A person holding the office of acting governor is to continue in the office only as long as the office is vacant or until the governor's incapacity is removed. Fifth, the article provides for the title of "Acting Governor," an acting governor's

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range of authority and salary, and specifies that an acting governor does not take the governor's oath of office. Sixth, the article addresses whether an officer serving as acting governor still holds the office by virtue of which the succession devolved on that person. During the time an officer serves as acting governor, the officer's capacity as senate president, senator, speaker of the house, member of the house, secretary of state, or state treasurer is suspended only. Seventh, the article provides that the governor or an acting governor has the authority to transact official business when absent from the state. As originally written in 1784, the article required the senior senator to take over for the president ("president" was changed in 1792 to "governor") when the chair of the president was vacant because of death or absence from the state, or otherwise. The 1784 version was patterned after the 1780 Massachusetts Constitution, except that in Massachusetts a lieutenant governor was to succeed the governor. In 1792, the article was amended to provide that the senate president, when acting as governor, could not hold his office in the senate. The speaker of the house was added in the line of gubernatorial succession after the senate president in 1889, and in 1968 the secretary of state and state treasurer were also added. The article was amended in 1956 to give the governor authority to transact official business when absent from the state. The most recent amendment dates from 1984. This amendment reworded the article and added language providing for succession if the governor suffers from physical or mental incapacity (see Article 49-a added in 1984, dealing with incapacity), requiring a new election if a vacancy occurs before the last year of the governor's term, requiring that compensation of the acting governor equals that of the governor, and requiring that the ability of a state officer serving as acting governor to serve in his or her elected office is suspended only and not forfeited while serving as acting governor. This article was first interpreted by the court in Attorney General v. Taggert (1890) 66 N.H. 362. The attorney general filed a petition in court to require the senate president, David A. Taggert, to exercise the powers and duties of the office of governor, because the governor was ill and had notified the attorney general in writing that he was unable to perform the duties of his office. Taggert had refused to exercise the powers and duties of governor because his responsibilities had not been settled by adjudication. The constitution then provided that the senate president was to exercise the powers and duties of the governor when the chair of the governor was vacant by reason of the governor's death, absence from the state, "or otherwise." The court held that "otherwise," as used in the article, included the governor's physical disability. In 1935, when only the senate president and speaker of the house stood in the line of succession to the governor, the senate president was ill, and the senate had elected a president pro tem. The question arose as to whether the senate president pro tem or the speaker of the house would fill the governor's chair when the governor was absent from the state. In Opinion of the Justices (1935) 87 N.H. 489, the court held that when the senate president was disabled, the chair of the senate president was vacant, so that the speaker, as next in line,


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would carry out the duties of governor when the governor was absent from the state. The court determined that, under Article 49, the senate president pro tem was not a constitutional officer, and his authority as president pro tem did not include the authority to act as the president's substitute for others. In 1975, the court responded to a request for an opinion from the senate concerning the status of the senate president in the senate, if the senate president were exercising the office of governor. The senate president was prevented from holding his office in the senate while he "shall exercise the office of governor." The court held that the senate president was prevented from occupying his constitutional office of senator as well as the office of senate president, while acting as governor, except that, if the governor was temporarily or briefly absent from the state during the legislative session, the senate president could still exercise ceremonial, routine, signatory, proclamatory, ministerial, and similar functions of the gubernatorial office, without losing his right to act as a member of the senate. Opinion of the Justices (1975) 115 N.H. 44. [ART.] 49-a. (PROLONGED FAILURE TO QUALIFY; VACANCY IN OFFICE OF GOVERNOR DUE TO PHYSICAL OR MENTAL INCAPACITY, ETC.] Whenever the governor transmits to the secretary of state and president of the senate his written declaration that he is unable to discharge the powers and duties of his office by reason of physical or mental incapacity and until he transmits to them a written declaration to the contrary, the president of the senate, for the time being, shall act as governor as provided in article 49, subject to the succession provisions therein set forth. Whenever it reasonably appears to the attorney general and a majority of the council that the governor is unable to discharge the powers and duties of his office by reason of physical or mental incapacity, but the governor is unwilling or unable to transmit his written declaration to such effect as above provided, the attorney general shall file a petition for declaratory judgment in the supreme court requesting a judicial determination of the ability of the governor to discharge the powers and duties of his office. After notice and hearing, the justices of the supreme court shall render such judgment as they find warranted by a preponderance of the evidence; and, if the court holds that the governor is unable to discharge the powers and duties of his office, the president of the senate, for the time being, shall act as governor as provided in article 49, subject to the succession provisions therein set forth, until such time as the disability of the governor is removed or a newly elected governor is inaugurated. Such disability, once determined by the supreme court, may be removed upon petition for declaratory judgment to the supreme court by the governor if the court finds, after notice and hearing, by a preponderance of the evidence that the governor is able to discharge the powers and duties of his office. Whenever such disability of the governor, as determined by his written declaration or by judgment of the supreme court, has continued for a period of 6 months, the general court may, by concurrent resolution adopted by both houses, declare the office of

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The New Hampshire State Constitution governor vacant. Whenever the governor-elect fails to qualify by reason of physical or mental incapacity or any cause other than death or resignation, for a period of 6 months following the inauguration date established by this constitution, the general court may, by concurrent resolution adopted by both houses, declare the office of governor vacant. The provisions of article 49 shall govern the filling of such vacancy, either by special election or continued service of an acting governor. If the general court is not in session when any such 6-month period expires, the acting governor, upon written request of at least 1 /4 of the members of each house, shall convene the general court in special session for the sole purpose of considering and acting on the question whether to declare a vacancy in the office of governor under this article. Source: 1984.

This lengthy article details when and how the governor may be determined to suffer from a disability that prevents his or her functioning as governor, triggering the process of gubernatorial succession. It covers many issues relating to disability, including how the existence of a gubernatorial disability is to be determined, and how the office of governor may be declared vacant by the legislature, if a governor's disability continues longer than six months or if a governor-elect fails to qualify by reason of disability for six months after the inauguration date. Until this article was adopted in 1984, there were no specific constitution provisions dealing with the procedures for dealing with a prolonged vacancy in the governor's office due to the governor's physical or mental incapacity, although a reference in Article 49 to "otherwise" as a reason for a vacancy in the chair of the governor did generally cover situations of disability. The 1983 legislature proposed this amendment, after a series of events in late 1982 brought the need for clear provisions dealing with gubernatorial disability into sharp focus. On November 20, 1982, Governor Hugh J. Gallen was confined to a Boston hospital, where he died in late December. John H. Sununu had been elected governor in November, but was not sworn in until January 6, 1983. Senate President Robert B. Monier became acting governor when Governor Gallen was hospitalized, but ceased to be acting governor when all legislative terms expired at midnight on November 30. The succession briefly passed to the secretary of state until the new senate had organized and elected a president, Vesta M. Roy, who was then acting governor until Governor Sununu was sworn in. [ART.] 50. (GOVERNOR TO PROROGUE LEGISLATURE, AND CALL EXTRA SESSIONS.]

OR

ADJOURN

The governor, with advice of council, shall have full power and authority, in the recess of the general court, to prorogue the same from time to time, not exceeding ninety days, in any one recess of said court; and during the sessions of said court, to adjourn or prorogue it to any time the two houses may desire, and to call it together sooner than the time to which it may be


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adjourned, or prorogued, if the welfare of the state should require the same. Source: 1784. Amended 1792. This article is the authority for the governor and council to call a special legislative session. It also gives the governor and council authority to extend the adjournment of the legislature when it is in recess, for up to 90 days, and, in accordance with the wishes of the general court, to adjourn or prorogue the legislature to another time. This article should be read in conjunction with Part 2, Article 43, which deals with the governor and council's authority of adjournment and prorogation, if the two houses of the legislature cannot agree. This article is based on the 1780 Massachusetts Constitution, and was amended only once, in 1792, to change "president" to "governor." Constitutional amendments eliminating the governor and council's authority to prorogue the legislature were twice rejected, in 1974 and 1984. The court has defined "recess" in this article to mean the time during which the general court is not assembled in either regular or special session. The governor and council's authority to "prorogue" the legislature means that, if the general court has called itself back into session without the consent of governor and council, the governor and council may extend the reassembling of the legislature for up to 90 days. Opinion of the Justices (1944) 93 N.H. 474. The court in 1975 responded to questions from the governor and council, when the governor desired to call a special session to consider a crisis in group medical and hospital insurance. The adoption of amendments to Articles 19 and 36 of Part 2, removing any limitations on the ability of the house and the senate to adjourn themselves, had called into question the ability of the governor and council to call a special session of the legislature when both houses of the legislature had adjourned to the call of their presiding officers. Also at issue was whether a session called by the governor and council would be a special session so as to entitle legislative members to special session mileage and per diem payments, or simply a continuation of the regular session. The court held that the power of the governor and council to adjourn the house and senate under Part 2, Article 50 was independent of the power of the house and senate to adjourn themselves under Articles 19 and 36 when the two houses so desired. The 1966 amendments did not by implication remove the power of the governor and council under Part 2, Article 50 to call the general court into session, if the welfare of the state so required. The session called by the governor and council would be a special session under the article controlling legislative compensation, Part 2, Article 15. Opinion of the Justices (1975) 115 N.H. 686. |ART.] 51. [POWERS AND COMMANDER-IN-CHIEF.]

DUTIES

OF

GOVERNOR

The governor of this state for the time being, shall be commander-in-chief of all the military forces of the state; and shall have full power, by himself or by any chief commander, or other officer or officers, from time to time,

AS

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The New Hampshire State Constitution to train, instruct, exercise and govern the militia; to call forth the militia and to put in warlike posture the inhabitants of the state; to execute the laws of the state and of the United States; to suppress insurrection and to repel invasion; and, in fine, the governor is hereby entrusted with all other powers incident to the office of commander-in-chief to be exercised agreeably to the rules and regulations of the constitution and the laws of the land. Source: 1784. Amended 1792 and 1968.

This article defines the military powers of the governor as commander-inchief of the militia, which includes the National Guard, the state guard, and the unorganized militia. The National Guard is highly regulated by federal law. The state guard and unorganized militia are regulated by New Hampshire statutes. The expansive and flowery language of the 1784 version of this article was based on the 1780 Massachusetts Constitution. Both constitutions contained provisos that the chief executive could not remove inhabitants from the state without their free and voluntary consent or consent of the general court. The term "president" was changed to "governor" in 1792. An amendment in 1968 reworded and condensed the article. In its Report to the Fifteenth Constitutional Convention (which met in 1964), the Commission to Study the State Constitution recommended that the wording of this article be changed, not only because it contained obsolete references to the "navy" but also, and more importantly, because it contained grants of military power to the governor contrary to federal law and the federal constitution. Before its 1968 amendment, the article gave the governor authority to assemble the inhabitants of the state "in martial array," and lead them against any enemy "invading, conquering, or annoying" the state. The convention adopted the wording suggested by the commission, and the changes were ratified by the voters in 1968. There have been no New Hampshire Supreme Court cases interpreting this article. [ART.] 52. [PARDONING POWER.] The power of pardoning offenses, except such as persons may be convicted of before the senate, by impeachment of the house, shall be in the governor, by and with the advice of council: But no charter of pardon, granted by the governor, with advice of the council, before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offense or offenses intended to be pardoned. Source: 1784. Amended 1792. This article gives the governor and council the power to grant pardons to persons convicted of "offenses." The power does not extend to the ability to pardon persons convicted in an impeachment trial before the senate.


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This article in 1784 was virtually identical to an article of the 1780 Massachusetts Constitution. It was amended in 1792 to change "president" to "governor." The pardoning power of the governor and council under this article was described by the court as an "act of executive grace completely eliminating all consequences of the conviction," but not removing the record of conviction. Doe v. State (1974) 114 N.H. 714. In Doe, the court upheld the state annulment statute, which gave the judiciary the power to annul the record of a conviction, and found that it was not an unconstitutional infringement of the prerogative of the governor to pardon. [ART.] 53. [MILITIA OFFICERS, REMOVAL OF.| (Repealed in 1976) This article protected officers in the militia from being removed from office unless upon address of both houses of the legislature to the governor or by a "fair trial in court martial." The article was part of the 1784 constitution, based on the 1780 Massachusetts Constitution. It was amended in 1792 to change "president" to "governor," and was repealed as obsolete in 1976. [ART.] 54. [STAFF AND NON-COMMISSIONED OFFICERS, BY WHOM APPOINTED.] (Repealed in 1976) This article gave field officers authority to appoint certain of their own higher-ranking subordinates. This article was part of the 1784 constitution, based on the 1780 Massachusetts Constitution. It was repealed as obsolete in 1976. [ART.] 55. [DIVISION OF MILITIA INTO BRIGADES, REGIMENTS, AND COMPANIES.] (Repealed in 1976) This article provided that the divisions of the militia made under the militia laws then in force were to remain in effect until changed by law. This article was part of the 1784 constitution and was the same as a provision in the 1780 Massachusetts Constitution. It was repealed as obsolete in 1976. [ART.] 56. [DISBURSEMENTS FROM TREASURY.] No moneys shall be issued out of the treasury of this state, and disposed of, (except such sums as may be appropriated for the redemption of bills of credit, or treasurer's notes, or for the payment of interest arising

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The New Hampshire State Constitution thereon) but by warrant under the hand of the governor for the time being, by and with the advice and consent of the council, for the necessary support and defense of this state, and for the necessary protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the general court. Source: 1784. Amended 1792.

This article states the required method and allowable purposes for expenditures of state money. Similar warrant language appears in Part 2, Article 5. This article, part of the 1784 constitution, was modeled after the 1780 Massachusetts Constitution, and was amended in 1792 to change "president" to "governor." This article is intended to assure that payments made from the state treasury are legally made for legitimate public purposes. The governor, with the consent of council, has the authority to issue a warrant for payment of money from the state treasury only when the legislature has appropriated money for the purpose stated in the warrant. No payment can be made out of the state treasury except upon an appropriation or equivalent direction for payment by the legislature. Opinion of the Justices (1910) 75 N.H. 624. Therefore, without a specific appropriation, the governor and council could not issue a warrant for money to be used for the expenses of litigation to which the state might become a party. Opinion of the Justices (1910) 75 N.H. 624. The issuance of the governor's warrant is a required prerequisite for payment by the state treasurer. Without the governor's properly issued warrant, the state treasurer was personally liable for payments to a construction company in excess of the authorized appropriations, made in anticipation of the governor's warrant. State v. Kimball (1950) 96 N.H. 377. It did not matter that the governor did subsequently issue a warrant and that the payment was made in good faith, because it was on the treasurer's authorization that the payment was made, and the state had no legal obligation to pay the excess amount. The article also is a practical declaration that the state cannot be sued without its consent, and cannot be liable for interest on its obligations without its consent. In Kaemmerling v. State (1924) 81 N.H. 405, the state was required to pay its obligation for an inheritance tax refund, but not interest on the refund, because no statute provided for the state to pay interest on such a refund. [ART.] 57. [ACCOUNTS OF MILITARY STORES.] (Repealed in 1950) This article required various public officers to account every three months to the governor for all military stores and other public property in their care, with an account of the condition of forts and garrisons. The 1784 version was virtually the same as the corresponding provision in the 1780 Massachusetts Constitution. The article was amended in 1792 to change "president" to "governor," and was repealed as obsolete in 1950.


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|ART.] 58. [COMPENSATION OF GOVERNOR AND COUNCIL.] The governor and council shall be compensated for their services, from time to time, by such grants as the general court shall think reasonable. Source: 1784. Amended 1792. [The text in the publication, The New Hampshire Constitution 1784, for 2001-2003, contains a typographical error, "general courts."] This article requires the legislature to provide reasonable compensation for the governor and council. This article was amended in 1792 to refer to the "governor" instead of the "president." The article was based on the 1780 Massachusetts Constitution, but differed in that the New Hampshire version required that compensation be "reasonable," while the Massachusetts version required the governor should have an "honorable stated salary" which was to be "amply sufficient." There are no New Hampshire Supreme Court cases interpreting this article. [ART.] 59. [SALARIES OF JUDGES.] Permanent and honorable salaries shall be established by law, for the justices of the superior court. Source: 1784. This article requires the legislature to establish "permanent and honorable salaries" for judges of the superior court. It should be noted that the superior court of judicature was the highest court in New Hampshire at the time of the adoption of this article. This article was patterned after a provision in the 1780 Massachusetts Constitution. This article is intended to ensure the independence of the judiciary and to protect judges from being influenced by the legislature's power of the purse. The court has noted that the rationale behind establishing tenure for judges during good behavior in Part 2, Article 73 and permanent and honorable salaries in this article was to provide an "inducement for persons so to qualify themselves, as an encouragement to vigilance, and an antidote to bribery and corruption." Opinion of Justices (Judicial Salary Suspension) (1995) 140 N.H. 297. The supreme court, as part of its inherent power to superintend the courts, may suspend the salary of a judge who has been suspended by the court for abuse or misconduct. Suspending the pay of a judge under such circumstances is not a violation of this article providing for permanent and reasonable salaries. Opinion of Justices (Judicial Salary Suspension) (1995) 140 N.H. 297. [ART.] 60. [COUNCILORS; MODE OF ELECTION, ETC.] There shall be biennially elected, by ballot, five councilors, for advising the governor in the executive part of government. The freeholders and

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The New Hampshire State Constitution other inhabitants in each county, qualified to vote for senators, shall some time in the month of November, give in their votes for one councilor; which votes shall be received, sorted, counted, certified, and returned to the secretary's office, in the same manner as the votes for senators, to be by the secretary laid before the senate and house of representatives on the first Wednesday following the first Tuesday of January. Source: 1784. Amended 1792, 1877, 1889, and 1984.

This article provides for the election of five executive councilors. The role of the executive councilors is to advise the governor "in the executive part of government." Other provisions of the constitution define the advisory role of the executive council in specific situations. For example, the governor and council act together in Article 46 in nominating and appointing judges, the attorney general, and officers of the militia; exercise pardoning power under Article 52; and call special legislative sessions under Article 50. Statutes define other situations in which the council is to advise the governor. The requirement that the election be by the "freeholders and other inhabitants in each county" is archaic. Voters do not have to hold real property in fee simple in order to vote, and, since 1792, the legislature has had the authority to establish councilor districts. Under the 1784 constitution, "counsellors" were not elected by the voters, but were elected by joint ballot of the house and senate, two to come from the senate, and three to come from the house. The Massachusetts Constitution of 1780 also provided for a council to advise the governor, but specified that nine councilors were to be elected from the persons elected to the senate. An amendment to Article 60 in 1792 provided for direct election of councilors, one from each of the five counties existing at that time, and changed the reference from "president" to "governor." Other amendments in 1877, 1889, and 1984 adjusted the time of the election and when votes had to be returned to the secretary of state. A case in 1973 cited this article, when referring to the council's function to advise the governor in the matter of the state budget, because the budget pertained to the administration of fiscal affairs of the state. Opinion of the Justices (1973) 113 N.H. 87. The article was also cited in Opinion of the Justices (1907) 74 N.H. 606, when the governor and council sought an opinion regarding the provision of railway transportation of state officials at the expense of the state. A statute required the "governor" to enter into a contract for this transportation, but the court noted that the consent of the council was required for the full performance of the governor's duty under the statute. [ART.] 61. [VACANCIES, HOW FILLED, IF NO CHOICE.] And the person having a plurality of votes in any county, shall be considered as duly elected a councilor: But if no person shall have a plurality of votes in any county, the senate and house of representatives shall take the names of the two persons who have the highest number of votes in each county, and not elected, and out of those two shall elect by


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joint ballot, the councilor wanted for such county, and the qualifications for councilors shall be the same as for senator. Source: 1792. Amended 1912. This article provides for the election of councilors by a plurality of the votes and requires that the age and residency qualifications for councilors are to be the same as those required for senators in Part 2, Article 29. As in Article 60, the reference to "county" is obsolete, as councilors are chosen from councilor districts. This article was ratified by the voters in 1792. It was amended in 1912 to provide for election by a plurality instead of a majority of votes. There have been no interpretations of this article by the New Hampshire Supreme Court. [ART.] 62. [SUBSEQUENT VACANCIES; GOVERNOR TO CONVENE; DUTIES.) If any person thus chosen a councilor, shall be elected governor or member of either branch of the legislature, and shall accept the trust; or if any person elected a councilor, shall refuse to accept the office, or in case of the death, resignation, or removal of any councilor out of the state, the governor may issue a precept for the election of a new councilor in that county where such vacancy shall happen and the choice shall be in the same manner as before directed. And the governor shall have full power and authority to convene the council, from time to time, at his discretion; and, with them, or the majority of them, may and shall, from time to time hold a council, for ordering and directing the affairs of the state, according to the laws of the land. Source: 1792. Under this article, the governor is to call for a new election in case there is a vacancy in the office of executive councilor. The article gives the governor the authority to convene the council at his discretion, and provides that the governor and a majority of the council will order and direct the affairs of the state. This article was added as part of the revision of 1792. It may be inferred from this article and Part 2, Article 46 that a majority of the council constitutes a quorum. Opinion of the Justices (1953) 98 N.H. 530. It is contemplated that the members of the council will ordinarily cast a vote one way or another in the course of their duties, unless disqualified. A member cannot, by abstaining from voting, defeat the action of those who vote, and the silence of a member will be taken as acquiescence in the action taken by the majority of votes cast. Opinion of the Justices (1953) 98 N.H. 530. Under the authority to order and direct the affairs of state, the governor and council may regulate the internal working of the executive branch. Therefore, the governor and council could require that elected state officials resign their positions before taking a position in the executive branch, but could not adopt a procurement policy for services contracted with elected state officials or regulate

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the employment of members of the legislative branch. Opinion of the Justices (1976) 116 N.H. 406. [ART.] 63. [IMPEACHMENT OF COUNCILORS.] The members of the council may be impeached by the house, and tried by the senate for bribery, corruption, malpractice, or maladministration. Source: 1784. Amended 1792. Under this article, members of the executive council may be impeached and tried for "bribery, corruption, malpractice, or maladministration." This is the same impeachment procedure used for state officers under Articles 17 and 38 of Part 2. The article, in 1784, provided that members of the council could be impeached for "mal-conduct." The wording of the present article dates from 1792. This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 64. [SECRETARY TO RECORD PROCEEDINGS OF COUNCIL.] The resolutions and advice of the council shall be recorded by the secretary, in a register, and signed by all members present agreeing thereto; and this record may be called for at any time, by either house of the legislature; and any member of the council may enter his opinion contrary to the resolutions of the majority, with the reasons for such opinion. Source: 1784. Amended 1792. This article provides that the secretary of state is the recording officer for the executive council. Councilors must sign the register to attest to their votes, and a dissenting member of the council may enter his reasons for dissenting in the register. The register is available to both houses of the legislature. The constitution in 1784 covered the main points of the present article, requiring the recording of council proceedings in a register, to be signed by all members. The register had to be available to both houses of the legislature, and any member could enter a dissenting opinion. The wording was expanded in 1792 to specify that the secretary was the recording officer and to provide that members "agreeing thereto" had to sign the register, and that a dissenting member could enter an opinion "with the reasons for such opinion." The court held in Opinion of the Justices (1919) 79 N.H. 535 that the verity of the records of the council is attested to by the members of the council by thensignatures in accordance with this article, even though the secretary of state is the person who is the recording officer.


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[ART.[ 65. [COUNCILOR DISTRICTS PROVIDED FOR.] The legislature may, if the public good shall hereafter require it, divide the state into five districts, as nearly equal as may be, governing themselves by the number of population, each district to elect a councilor: And, in case of such division, the manner of the choice shall be conformable to the present mode of election in counties. Source: 1792. Amended 1912. This article allows the legislature to divide the state into five executive councilor districts, based on population. Under the 1784 constitution, when there were five counties in New Hampshire, one councilor was elected from each county (Rockingham, Strafford, Hillsborough, Cheshire, and Grafton). This article, added to the constitution in 1792, allowed the legislature to create executive council districts based on ratable polls and proportion of public taxes paid. (See discussion under Part 2, Article 9 regarding ratable polls.) The day after a law was passed increasing the number of state counties from five to eight (adding Coos, Merrimack, and Sullivan),14 the legislature on January 3, 1829, divided the state into five districts for the choice of councilors, the districts not being organized on county lines.15 The basis for districts was changed from ratable polls and public taxes to population by an amendment in 1912. The New Hampshire Supreme Court has not interpreted this article. [ART.] 66. [ELECTIONS BY LEGISLATURE MAY BE ADJOURNED FROM DAY TO DAY; ORDER THEREOF.] And, whereas the elections, appointed to be made by this constitution on the first Wednesday of January biennially, by the two houses of the legislature, may not be completed on that day, the said elections may be adjourned from day to day, until the same be completed; and the order of the elections shall be as follows—the vacancies in the senate, if any, shall be first filled up: The governor shall then be elected, provided there shall be no choice of him by the people: And afterwards, the two houses shall proceed to fill up the vacancy, if any, in the council. Source: 1784. Amended 1792, 1877, and 1889. This article provides that the legislature may adjourn from day to day if it does not complete elections required because no person received a plurality of the votes for senator (Article 34), governor (Article 42), or member of the council (Article 61). After Articles 34, 42, and 61 were amended in 1912 to require that senators, the governor, and members of the council be elected by a plurality of votes instead of a majority of the votes, Article 66 would come into play only in the unlikely event that no candidate received more votes than another.

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The reference to the elections to be made on the "first Wednesday of January" is outdated. The reference to the date of the laying of the returns by the secretary of state before the legislature was changed from the "first Wednesday of January" to the "first Wednesday following the first Tuesday in January" in 1982 in Article 42 and in 1984 in Article 60. In 1784, the article was patterned after the 1780 Massachusetts Constitution. It was amended in 1792 to change "president" to "governor" and to require an election of the council only if there was a vacancy. Amendments in 1877 and 1889 changed references from annual to biennial elections and the time of the convening of the legislature from June to January. There have been no court decisions interpreting this article. [ART.] 67. [ELECTION OF SECRETARY AND TREASURER.] The secretary and treasurer shall be chosen by joint ballot of the senators and representatives assembled in one room. Source: 1784. Amended 1950. This article requires that the secretary of state and the state treasurer be elected by the legislature. Aside from the requirement that the legislature vote by joint ballot to decide elections under Articles 34, 42, and 61 (see the discussion under Article 66), which would be a most unlikely occurrence, Article 67 contains the only constitutional requirement for the legislature to meet in joint session and vote by joint ballot. The version of Article 67 in 1784 was patterned after the 1780 Massachusetts Constitution and included the election of the commissary-general in the same manner. The obsolete reference to the commissary-general was deleted by amendment in 1950. Under a statute, one of the duties of the secretary of state is to present bills to the governor after the bills have been signed by the presiding officers of the house and senate. The legality of an act was questioned when the secretary of state presented a bill to the governor after the legislature had adjourned, and the governor signed it into law. The court upheld the validity of the law, even though the legislature had adjourned before it was signed. The court noted that, although the secretary of state is elected by the legislature under Article 67, the secretary's duties, as expressed in Article 68, are executive as well as legislative, and continue after the adjournment of the legislature. Opinion of the Justices (1965) 106 N.H. 402. [ART.] 68. [STATE SECRETARY.]

RECORDS,

WHERE

KEPT;

DUTY

The records of the state shall be kept in the office of the secretary, and he shall attend the governor and council, the senate and representatives, in person, or by deputy, as they may require. Source: 1784. Amended 1792.

OF


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This article requires the secretary of state, upon request, to attend the governor and council, house of representatives, or senate, and requires that records of the state be kept in the secretary's office. This article in 1784 was patterned after the 1780 Massachusetts Constitution. In 1792, it was amended to change a reference from "president" to "governor" and to move material concerning the appointment of the deputy secretary of state to what is now Article 69. An early New Hampshire Supreme Court case made it clear that records of the state include the journals of each house of the legislature. Opinion of the Justices {U51) 15 "tt.H. 579. [ART.J 69. [DEPUTY SECRETARY.) The secretary of the state shall, at all times, have a deputy, to be by him appointed; for whose conduct in office he shall be responsible: And, in case of the death, removal, or inability of the secretary, his deputy shall exercise all the duties of the office of secretary of this state, until another shall be appointed. Source: 1784. Amended 1792. This article requires the secretary of state to appoint a deputy secretary, who is to take on the duties of the secretary if the secretary is unable to carry them out, until a new secretary is chosen under Article 67. The constitution in 1784 referred to the appointment of "his deputies" by the secretary of state, for whose conduct the secretary was responsible. In 1792, an amendment required the secretary to appoint "a deputy," and added the second sentence, describing the circumstances under which the deputy was required to exercise the duties of the secretary. There have been no court decisions interpreting this article. [ART.] 70. [SECRETARY TO GIVE BOND.] The secretary, before he enters upon the business of his office, shall give bond, with sufficient sureties, in a reasonable sum, for the use of the state, for the punctual performance of his trust. Source: 1792. This article requires the secretary of state to give a bond to secure the performance of his or her duties as secretary. A statute sets the amount of the bond and requires that the sureties on the bond must be approved by governor and council. (RSA 5:1) This article has not been interpreted by the court.

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[ART.] 71. [COUNTY TREASURERS, REGISTERS OF PROBATE, COUNTY ATTORNEYS, SHERIFFS, AND REGISTERS OF DEEDS ELECTED.] The county treasurers, registers of probate, county attorneys, sheriffs and registers of deeds, shall be elected by the inhabitants of the several towns, in the several counties in the state, according to the method now practiced, and the laws of the state, Provided nevertheless the legislature shall have authority to alter the manner of certifying the votes, and the mode of electing those officers; but not so as to deprive the people of the right they now have of electing them. Source: 1784. Amended 1792, 1877, and 1958. This article requires the election of county treasurers, registers of probate, county attorneys, sheriffs, and registers of deeds by the people in the appropriate town or county. The legislature may change certain features of the manner of election, but not the right of the people to elect these officers. The constitution in 1784 referred only to the county treasurers and registers of deeds. In 1792 an amendment gave the legislature the authority to alter the manner of certifying the votes and the mode of electing the officers and moved material regarding the oath and bond of these officers to what is now Article 72. Other officers—registers of probate, county solicitors, and sheriffs—were added in 1877. An amendment in 1958 updated the reference from "county solicitors" to "county attorneys." The article requires that the elections must be "according to the method now practiced." The language was in the article in 1784 when it referred only to the county treasurers and registers of deeds. The method practiced in 1784 for these officers was election by the people in the county. The history of the early laws and the 1776 constitution regulating the selection of these county officers was reviewed in Opinion of the Justices (1835) 7 N.H. 599. Under provincial law in 1771 these officers were appointed by the governor, council, and assembly. The 1776 constitution changed this to election by the people of the county, and this was continued in the 1784 constitution. Except for the restrictions in the constitution regarding the election of these officers and the provisions of Article 72 regarding registers of deeds, the legislature may enact statutes controlling all other aspects of these offices. The court held that the legislature in 1835 would not violate this article if it changed the place of registration of deeds from the county registry office to the office of the town clerk in the town where the real estate was located. The office of register of deeds would be less important if made a town, rather than a county, office, but it would continue to exist and the register would continue to be elected, as required by the constitution. Opinion of the Justices (1835) 7 N.H. 599. The broad power of the legislature was affirmed again in Opinion of the Justices (1905) 73 N.H. 618. In this case, the court held that this article, and


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other articles relating to elections, would not be violated if the legislature chose to divide towns into voting precincts and authorize voting in such precincts instead of at town meetings. [ART.] 72. [COUNTIES MAY BE DIVIDED INTO DISTRICTS FOR REGISTERING DEEDS.] And the legislature, on the application of the major part of the inhabitants of any county, shall have authority to divide the same into two districts for registering deeds, if to them it shall appear necessary; each district to elect a register of deeds: And before they enter upon the business of their offices, shall be respectively sworn faithfully to discharge the duties thereof, and shall severally give bond, with sufficient sureties, in a reasonable sum, for the use of the county for the punctual performance of their respective trusts. Source: 1784. Amended 1792. This article allows a county to be divided into two districts with two registers of deeds, for the purpose of registering deeds, if the majority of the county voters so request. In spite of this possibility, each of New Hampshire's ten counties still has only one register of deeds. Registers must take an oath and post a bond. The 1784 constitution required oath and bond from registers of deeds. A 1792 amendment added the legislative authority to divide counties into districts. The court reviewed this article in 1835 in conjunction with Article 71, when it considered the constitutionality of legislation to change the place of registration of deeds from the county registry office to the office of the town clerk in the town where the real estate was located. The court held the constitution would not be violated by this action, even though deeds would no longer be registered at the county registry. The court commented that it would be difficult to find a sound reason for the inference that Article 72 restricted the authority of the legislature to divide a county into more than two districts for registering deeds, because the legislature could constitutionally divide the state into as many counties as it wished, even to the point of making each town a district for registering deeds. Opinion of the Justices (1835) 7 N.H. 599. [ART.] 72-a. [SUPREME AND SUPERIOR COURTS.] The judicial power of the state shall be vested in the supreme court, a trial court of general jurisdiction known as the superior court, and such lower courts as the legislature may establish under Article 4th of Part 2. Source: 1966. This article constitutionally establishes the supreme court and the superior court and vests the judicial power of the state in the supreme court, the superior court, and other courts as may be established by the legislature. The supreme court is the highest court in New Hampshire, and the superior court is a trial

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court of general jurisdiction. The legislature has the authority to determine the size and jurisdiction of each court and to establish lower courts under Part 2, Article 4. This article is the constitutional expression of the vesting of the judicial power in the judicial branch, just as Part 2, Article 2 vests legislative power in the legislative branch, and Part 2, Article 41 vests executive power in the governor. The Commission to Study the State Constitution, created by the legislature to make recommendations to the 1964 constitutional convention, advocated the adoption of this article. The commission recommended that the supreme and superior courts be given constitutional status to protect them from political assaults and change at the whim of the legislature. 16 Politically motivated legislation had legislated old courts out of existence five times in the nineteenth century, in 1813, 1816, 1855, 1874, and 1876. ,7 In each case, the newly dominant political party wanted to be able to appoint new judges. To accomplish this, the old courts were simply abolished, along with the judges sitting on them.18 The governor and council then made new judicial appointments after the legislature re-created the courts. Supporters of the new article favored its adoption to prevent instability in the judiciary and to ensure the integrity of the judiciary in keeping with the doctrine of separation of powers. The jurisdiction of the supreme court under this article extends to the resolution of a redistricting dispute {Monier v. Gallen (1982) 122 N.H. 474) and matters arising in the course of an impeachment proceeding under Part 2, Article 17 {In re Judicial Conduct Commission (2000) 145 N.H. 108). The court will assume that the judicial branch possesses all the authority necessary to perform its judicial functions, because otherwise the judicial power vested in the court under this article is meaningless. The court, therefore, had the inherent power to regulate the state bar. In re Tocci (1997) 137 N.H. 131. In a case defining the limits of authority of court-appointed marital masters, the court referred to this article and Part 2, Article 4, as the authority for the legislature to create judicial positions for the purpose of exercising jurisdiction in marital matters. A necessary characteristic of a judicial officer is the ability to render judgment to determine issues that are properly raised before the judicial branch. Only judicial officers may exercise marital jurisdiction, and marital masters were not constitutionally appointed judicial officers. Opinion of the Justices (1986) 128 N.H. 17. The authority of marital masters was again the subject of an opinion in 1997. The court held then that marital masters were not authorized to hear juvenile delinquency cases because they were not judicial officers under the constitution. In re Nicholas G. (1997) 142 N.H. 38.


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[ART.] 73. [TENURE OF OFFICE TO BE EXPRESSED IN COMMISSIONS; JUDGES TO HOLD OFFICE DURING GOOD BEHAVIOR, ETC.; REMOVAL.] The tenure that all commissioned officers shall have by law in their offices shall be expressed in their respective commissions, and all judicial officers duly appointed, commissioned and sworn, shall hold their offices during good behavior except those for whom a different provision is made in this constitution. The governor with consent of the council may remove any commissioned officer for reasonable cause upon the address of both houses of the legislature, provided nevertheless that the cause for removal shall be stated fully and substantially in the address and shall not be a cause which is a sufficient ground for impeachment, and provided further that no officer shall be so removed unless he shall have had an opportunity to be heard in his defense by a joint committee of both houses of the legislature. Source: 1784. Amended 1792 and 1966. This article provides that the tenure of office for commissioned officers be expressed in their commissions and that judges shall hold office during good behavior. Officers and judges may be removed by the governor and council upon address by the legislature. Before a person may be removed by address, the person must be told the reasons for removal in the address and has the right to be heard in his or her defense. The cause for a removal based on address cannot rise to the level of a cause sufficient to justify impeachment. This article dates from the 1784 constitution and was patterned after the 1780 Massachusetts Constitution. An amendment in 1792 changed "president" to "governor." The article was amended again in 1966 to add the procedures for removal by address from office. When the Commission to Study the State Constitution in 1964 recommended an amendment to this article to spell out the reasons a commissioned officer or judge may be removed by address, it noted that a judge could be removed for any reason a partisan majority believed sufficient. According to the commission's report, 65 judges had been removed from office by legislative address, some for political reasons, including four on the two highest courts. The 1966 amendment provided basic due process procedures to help protect persons from arbitrary or unjust removal by the legislature and governor. Similar amendments had been recommended by conventions but failed to be ratified by the voters in 1877 and 1903. The court has decided two cases clarifying the authority of the supreme court to discipline judges, short of removal by address. The power of the governor and council to remove a state officer "for reasonable cause upon the address of both houses of the legislature" is an executive and legislative proceeding. The judiciary does not have the power to remove judges using this method, but may exercise disciplinary authority short of removal. In re Mussman (1972) 112 N.H. 99.

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The supreme court's suspension of the pay of a judge as a matter of internal discipline did not violate the provisions of the constitution providing for tenure and permanent salaries for judges under this article or under Part 1, Article 35. Opinion of the Justices (Judicial Salary Suspension) (1995) 140 N.H. 297. In Blake v. State (1975) 115 N.H. 431, the court relied on the requirement of this article that the tenure of a commissioned officer must be expressed in his commission at the time of appointment. When the director of business profits tax was appointed, he was commissioned to hold office provided he was of good behavior during his term of office. After a departmental reorganization, the employment of the director was terminated, in accordance with a statute that provided that the director served at the pleasure of the commissioner of revenue administration. The director took the state to court, claiming that he was removed from office without cause in violation of his commission for office. The court found that the state had failed to follow the directive in this article to express the tenure of a person in his commission at the time of his appointment. The former state business tax director was entitled to protection commensurate with the extent of his reliance on the express terms of his commission. [ART.] 73-a. [SUPREME COURT, ADMINISTRATION.) The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law. Source: 1978. This article gives the chief justice of the supreme court superintendence power over all the courts. The chief justice must adopt rules to govern the courts, with a concurrence of a majority of the supreme court. The supreme court's supervisory and rulemaking authority over the courts derives primarily from this article and from the common law. In re Proposed N.H. Rules of Civil Procedure (1995) 139 N.H. 512. The inherent rulemaking power of courts is of ancient origin. In Nassif Realty Corp. v. National Fire Insurance Co. (1966) 107 N.H. 267, the court recounted the history of the inherent power of the judiciary to prescribe rules of practice and procedure governing the courts. The article adopted in 1978 endorsed the court's inherent power to promulgate and administer rules concerning practice and procedure in the courtroom with constitutional authority. Opinion of the Justices (Prior Sexual Assault Evidence) (1997) 141 N.H. 562. The rulemaking authority under this article rests only with the supreme court. The superior court could not issue an order unilaterally amending a superior court administrative rule. Cotter v. Wright (2000) 145 N.H. 568. The supreme court's superintending authority over the courts is broad authority. It includes the court's inherent authority to discipline the legal profession. Petition of Grimm (1993) 138 N.H. 42. The court may discipline


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judges for misconduct, suspend a sitting judge or assign another judge to a case, and review a judge's refusal to grant a motion to recuse. Douglas v. Douglas (1999) 143 N.H. 419. The court has used this superintending authority to order a particular method of jury selection {State v. Elbert (1981) 121 N.H. 43), to suggest a model trial court instruction relative to reasonable doubt {State v. Wentworth (1978) 118 N.H. 832), to require the state to bring indictments within a particular time from arrest, or show why a delay was not unreasonable {State v. Hastings (1980) 120 N.H. 454), and to establish a professional conduct committee to regulate attorney conduct {Rousseau v. Eshleman (1986) 128 N.H. 564). A proposed bill that would have mandated the suspension of the salary and benefits of every judge suspended for misconduct intruded on the court's superintendence power. Opinion of the Justices (Judicial Salary Suspension) (1995)140N.H. 297. In a case decided under Part 1, Article 37, the separation of powers article, the court cited Part 1, Article 37 and Part 2, Article 73-a as authority for the court to promulgate its own rules. Opinion of the Justices (Prior Sexual Assault Evidence) (1997) 141 N.H. 562. In responding to the legislature about the constitutionality of a proposed statute relating to the admissibility of evidence of a defendant's prior sexual offenses at trial, the court adopted a test to determine whether a legislative action affecting judicial rules was constitutional, involving the distinction between substance and procedure. Essentially, the legislature had authority to affect substantive rights and duties of individuals, while the judiciary had the exclusive authority to control procedure. The proposed statute, in this case, was found to violate Part 1, Article 37 because the subject of the statute fell within the exercise of "judicial powers" reserved to the courts.19 [ART.] 74. [JUDGES TO GIVE OPINIONS, WHEN.] Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions. Source: 1784. Amended 1792 and 1958. This article allows either the house of representatives or the senate, as well as the governor and council, to ask for an opinion of the court on important legal questions arising in the course of their official duties. The article in 1784 was based on a provision of the 1780 Massachusetts Constitution. An amendment in 1792 changed "president" to "governor" and another in 1958 changed "superior court" to "supreme court." At the time of the article's adoption in 1784, the superior court of judicature was the highest state court. Long after the designation for the highest court was changed to the supreme court, the article continued to refer to the "superior court," but the supreme court, as the state's highest court, issued opinions under this article. The terminology of the article was corrected with the 1958 amendment.

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The legislature and the governor and council have sought the advice of the court under this article frequently over the years. There are about 175 reported opinions. The earliest formally reported opinions issued under this article date from 1816, although they were not printed in the New Hampshire Reports until 1889 (both opinions have the same citation, Opinion of the Court (1816) 62 N.H. 704). When the court responds to a request for an opinion under this article, it is acting as constitutional advisors to the body requesting the opinion, and not as a court. Piper v. Town of Meredith (1969) 109 N.H. 328. The power of the court to issue an opinion under this article is an exception to the general constitutional principle that courts cannot give opinions without first providing an opportunity for notice and hearing to parties involved in a particular case. Faulkner v. Keene (1931) 85 N.H. 147. The cases interpreting this article have clarified who may request an advisory opinion, who may issue an advisory opinion, when advice may be requested and given, and what the restrictions are on a question. Who May Request an Advisory Opinion Only either house of the legislature or the governor and council may pose a question to the court under this article. Neither a mayor and board of aldermen {Opinion of the Justices (1877) 62 N.H. 706), a private citizen {State v. Harvey (1965) 106 N.H. 446), nor the tax commission {Petition of Turner (1952) 97 N.H. 449) was entitled to an advisory opinion under this article. Each branch of the legislature may independently request advice under this article, and the duty of the justices to answer the question does not depend on the consent or approval of the other branch. When the house requested that the court not respond to a question from the senate regarding whether or not a bill was a "money bill" under Part 2, Article 18, the court disregarded the request from the house and responded to the question from the senate. Opinion of the Justices {\959) 102 N.H. 80. If the legislative body asking for an advisory opinion withdraws its request, the court has no authority to render an advisory opinion. Opinion of the Justices (1969)109N.H. 366. The two houses of the legislature have requested advisory opinions more frequently than the executive. Who May Issue an Advisory Opinion Only the supreme court may issue an advisory opinion. The superior court had no jurisdiction to give an advisory opinion concerning the enactment of a town ordinance. Piper v. Town of Meredith (1969) 109 N.H. 328.


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When May Advice Be Requested and Given The general rule is that the court will furnish an advisory opinion upon a legal question pending in, and awaiting consideration and action by, the body entitled to the advice. Therefore, the court will not furnish an advisory opinion on pending legislation to the legislature after the general court has adjourned, unless an exception applies {Opinion of the Justices (1939) 90 N.H. 567), or when a bill is no longer in the possession of the body that requested the opinion {Opinion of the Justices (1975) 115 N.H. 329). The court also declined to respond to a question received from the governor and council on the same day that the terms of the governor and council expired, because it was impractical to return a timely answer. Opinion of the Justices (1901) 70 N.H. 640. However, the court has recognized an exception when the opinion has been requested for the guidance of the legislature at a possible special session or at the next regular one {Opinion of the Justices (1963) 105 N.H. 125), or, more particularly, when the body requesting the opinion asked for advice during a regular legislative session and, for good cause, intended to consider and act on the question during an expected special session {Opinion of the Justices (1969) 109 N.H. 473). The court also responded to a request for advice from the house of representatives met in special session that related to the constitutional authority of the general court to call itself back into session, because there was a possibility that the opinion could be of use to the present legislature if it had to convene for a wartime emergency. Opinion of the Justices (1944) 93 N.H. 474. The court has deemed it unwise to give its opinion until interested citizens had an opportunity to submit their views on the legal questions involved. Opinion of the Justices (1969) 109 N.H. 473. What Are the Restrictions on Questions That May Be Asked Both the governor and council {Opinion of the Justices (1959) 102 N.H. 183) and either branch of the legislature {Opinion of the Court (1881) 60 N.H. 585) may seek an opinion on matters involving their duties. Most often, requests from the legislature are related to the constitutionality of proposed legislation. There are a number of restrictions on what constitutes an "important question of law" and a "solemn occasion." The court cannot give opinions on legal questions involving the meaning or validity of an existing law {Opinion of the Justices (1983) 123 N.H. 510), questions which involve the resolution of questions of fact {Opinion of the Justices (1976) 116 N.H. 358), or questions which involve any matter which might come before the court for decision {Opinion of the Justices (1892) 67 N.H. 600). The exception to the rule that the court will not respond to a question which might come before it for decision is when the question concerns the official powers or duties of the legislature or governor and council and there is a

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doubt concerning those powers or duties. Opinion of the Justices (1892) 67 N.H. 600. It has long been the practice of the court to decline to answer questions that inquire whether proposed legislation violates any constitutional provision because of the generality of the question. Opinion of Justices (School Financing) (1998)142 N.H. 892. Cases in which the court has refused to answer questions include Opinion of the Justices (1981) 121 N.H. 280 (court refused to answer a question that related to the authority of the greyhound racing commission rather than that of the house of representatives), Opinion of the Justices (1959) 102 N.H. 187 (question asked by house of representatives related to meaning of existing law), Opinion of the Justices (1955) 99 N.H. 524 (question asked by house of representatives related to constitutionality of existing law), Opinion of the Justices (1949) 95 N.H. 557 (questions asked by house of representatives did not relate to powers and duties of the house and were questions of law affecting private rights alone on which interested persons were entitled to be heard), and Opinion of the Justices (1977) 117 N.H. 390 (question asked by governor and council did not relate to their duties). [ART.] 75. [JUSTICES OF PEACE COMMISSIONED FOR FIVE YEARS. | In order that the people may not suffer from the long continuance in place of any justice of the peace who shall fail in discharging the important duties of his office with ability and fidelity, all commissions of justice of the peace shall become void at the expiration of five years from their respective dates, and upon the expiration of any commission, the same may if necessary be renewed or another person appointed as shall most conduce to the well being of the state. Source: 1784. This article restricts the term of a commission for a justice of the peace to five years, after which it may be renewed. This article, dating from 1784, is based on the 1780 Massachusetts Constitution, except that commissions in Massachusetts expired after seven years instead of five. It has been held that the constitutional age limitation of 70 for judges under Part 2, Article 78 does not apply to justices of the peace, in part because the provision in Article 75 for a five-year term made no mention that the commission would expire or not be renewed because the justice of the peace had attained the age of 70. Keniston v. State (1884) 63 N.H. 37. Opinion of the Justices (1927) 83 N.H. 589 recognized the difference between elective and appointive offices in New Hampshire in holding that, in spite of the fact that the federal Nineteenth Amendment had given women the right to vote and hold office to elective offices, women could not be appointed to the office of justice of the peace in New Hampshire because the legislature


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had not abolished the common law rule that women were ineligible for the appointed office of justice of the peace. In 1929, this common law rule was abolished.20 [ART.J 76. [DIVORCE AND PROBATE APPEALS, WHERE TRIED.] All causes of marriage, divorce and alimony; and all appeals from the respective judges of probate shall be heard and tried by the superior court until the legislature shall by law make other provision. Source: 1784. This article directs that jurisdiction in marital matters and appeals from the judges of probate shall be heard in the superior court (in 1784 the highest court), unless the legislature provides otherwise by law. The article has never been amended. This article is similar to a provision in the 1780 Massachusetts Constitution, except appeals in Massachusetts were to be heard by the governor and council and in New Hampshire by the superior court. This article was included in the 1784 constitution in order to invest the judicial branch with jurisdiction over separation and divorce. Opinion of the Justices (1986) 128 N.H. 17. In England, prior to the American Revolution, ecclesiastical courts exercised jurisdiction over the validity of a marriage, separation, and support in the case of a separation, while divorces could only be granted by act of Parliament. Clough v. Clough (1922) 80 N.H. 462. During New Hampshire's Provincial and Revolutionary periods, prior to the adoption of the 1784 constitution, the legislature in New Hampshire granted divorces. Clark v. Clark (1839) 10 N.H. 380. The first law on divorce in the state of New Hampshire was enacted in 1791.21 Judicial power over marital cases is granted by this article, so only judicial officers may exercise marital jurisdiction, although the legislature may decide which officers should exercise that jurisdiction. Opinion of the Justices (1986) 128 N.H. 17. The jurisdiction of marriage, divorce, and alimony also includes nullity proceedings. Heath v. Heath (1932) 85 N.H. 419. The exercise of judicial branch jurisdiction over marital matters is subject to legislative control. The jurisdiction of marriage, divorce, and alimony is vested in the superior court "until the legislature shall by law make other provision." The authority of the court with respect to marital matters has been considered entirely statutory. Veino v. Veino (1951) 96 N.H. 439. The court has stated that "Libels for divorce are, and until the legislature otherwise provides must be, tried by the court." Warner v. Warner (1897) 69 N.H. 137. The courts have the authority to hear cases of divorce and alimony, and the statutes enacted by the legislature have given the courts wide discretion in this area, although the discretion is not arbitrary and is subject to revision by the legislature. Kennardv. tertmirrf(1925)81N.H.509.

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[ART.] 77. [JURISDICTION OF JUSTICES IN CIVIL CAUSES.l The general court are empowered to give to justices of the peace jurisdiction in civil causes, when the damages demanded shall not exceed one hundred dollars and title of real estate is not concerned; but with right of appeal, to either party, to some other court. And the general court are further empowered to give to police courts original jurisdiction to try and determine, subject to right of appeal and trial by jury, all criminal causes wherein the punishment is less than imprisonment in the state prison. Source: 1792. Amended 1877 and 1912. This article gives the legislature the authority to give jurisdiction to justices of the peace in certain civil cases, and to give jurisdiction to police courts to try misdemeanor criminal cases, both subject to the right of appeal. The article, as adopted in 1792, related only to justices of the peace and set a jurisdictional limit of £4. The amount was increased in 1877 to $100. In 1912, the article was amended to allow the legislature to give police courts jurisdiction in criminal cases punishable by less than imprisonment in the state prison. Police courts, which no longer exist as such, were created in 1852 to assume some of the jurisdiction of justices of the peace. Smith v. Tallman (1934) 87 N.H. 176. The functions of police courts were taken over by municipal, and later district, courts. The purpose of the 1912 amendment was to relieve the superior courts of the burden of trying many minor criminal offenses which could be disposed of more efficiently in front of a judge, while preserving the right to a jury trial if the police court's decision was appealed.22 Two articles in the constitution are devoted to justices of the peace—this article and Article 75. The office of justice of the peace was formerly of greater importance than it is today. When the court in State v. Jackson (1898) 69 N.H. 511 examined the history of the jurisdiction of justices of the peace in England and in New Hampshire, prior to the 1784 constitution, justices of the peace had long exercised both civil and criminal jurisdiction. At the time of the 1784 constitution, justices of the peace had jurisdiction over criminal offenses that were punishable by a fine not exceeding forty shillings, by whipping, or by setting in the stocks {State v. Gerry (1896) 68 N.H. 495). The article, as adopted in 1792, dealt only with the civil jurisdiction of justices of the peace. The amendment of 1912 clarified the criminal jurisdiction of justices of the peace and police courts, empowering the legislature to give them jurisdiction over criminal cases for which imprisonment did not exceed one year. The criminal jurisdiction of justices of the peace and police courts had been in contention in the courts for several years prior to the 1912 amendment. Two cases concerned with this issue were State v. Jackson (1898) 69 N.H. 511 and Wilmarth v. King (1908) 74 N.H. 512. It was held in State v. Jackson that the legislature could not by law increase the amount fined for a criminal offense to $20, when forty shillings (the amount assessable in 1784) was worth only about seven and three-quarters United States silver dollars coined in 1794. In Wilmarth v. King, the court held that a statute authorizing a justice of the peace to impose a six months' sentence for a crime was not unconstitutional and noted that six


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months' imprisonment was authorized by laws even antedating the 1784 constitution. Justice courts eventually fell into disuse and were abolished in 1951.23 The "civil causes" referred to in the article are actions in which specific damages are demanded. A statute that allowed justices of the peace to render judgment on the report of referees, whenever the subject submitted before the justice of the peace was a controversy under $200 in amount, did not violate the jurisdictional limitations of this article. The proceedings referred to in the statute were done only by voluntary agreement of the parties and were not the type of action where one party has forced another into litigation. Hayes v. Bennett (1822) 2 N.H. 422. The jurisdictional amount in civil cases is a set amount and cannot be increased by the legislature because of depreciation in currency. Prior to 1876 the limit in civil cases was £4 or $13.33. State v. Jackson (1898) 69 N.H. 511. This article is the basis of the state's two-tier system by which a person charged with a misdemeanor is tried in the district court without a jury and if found guilty is given the right of appeal to the superior court with a trial de novo by jury unless waived. This type of two-tier system was challenged as depriving a person of the right to a jury trial because it allowed a person's driver's license to be taken away after conviction in district court and before a trial by jury in superior court. The court in State v. Handfield (1975) 115 N.H. 628 upheld the two-tier system. The federal District Court of New Hampshire has noted that the two-tier system of criminal adjudication must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Koski v. Samaha (D.N.H. 1980) 491 F. Supp. 432, reversed on other grounds, 648 F.2d 790(lstCir. 1981). The article has been applied by the court to prohibit the imposition of enhanced penalties by the district court that would have exceeded the police (district) court's authority to punish criminal offenses by punishment "less than imprisonment in the state prison." Maximum sentences of more than one year are served in the state prison, while sentences of a year or less are served in a county correctional facility. The court held that district courts could only sentence a convicted criminal defendant to a year or less on individual complaints to a county correctional facility. Kulik v. Potter (1990) 133 N.H. 67. [ART.[ 78. [JUDGES AND SHERIFFS, WHEN DISQUALIFIED BY AGE.) No person shall hold the office of judge of any court, or judge of probate, or sheriff of any county, after he has attained the age of seventy years. Source: 1792. This article requires mandatory retirement at age 70 for any person holding the office of judge or county sheriff. A district court judge who was required to retire at age 70 challenged the constitutionality of the article in Grinnellv. State (1981) 121 N.H. 823, asserting

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that it violated the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. The court held there was no federal constitutional violation because there was a rational basis for the article. In its analysis, the court examined the history of the adoption of Article 78, stating that the article was adopted as part of the plan to maintain judicial independence in the 1784 constitution. Under the constitution of 1776, all power was concentrated in the legislative branch. The 1784 constitution included an article mandating the separation of powers. To foster an independent judiciary, judges were given the right to permanent and honorable salaries (Part 1, Article 35 and Part 2, Article 58), prohibited from holding certain other offices (Part 2, Article 95), and given their tenure during good behavior (Part 1, Article 35). The appointment of judges, with a 70-year age cap, placed a neutral outside limit on tenure which otherwise was to last as long as the judge maintained "good behavior." The mandatory retirement age does not apply to justices of the peace because the office of a justice of the peace is not included in the "office of judge of any court." Keniston v. State (1884) 63 N.H. 37. The court has also interpreted the article not to prohibit the appointment of a retired judge over the age of 70 to sit temporarily. The temporary assignment of Justice Batchelder in Claremont School District v. Governor (1998) 142 N.H. 737 under a statute did not and could not prolong his term of office, but rather enabled him to exercise his power as a judicial officer in a specific matter. The legislature has implied power under Part 2, Article 4 to authorize the assignment of a retired justice on a temporary basis to ensure the adequate and orderly administration of justice. [ART.| 79. [JUDGES AND JUSTICES NOT TO ACT AS COUNSEL.] No judge of any court, or justice of the peace, shall act as attorney, or be of counsel, to any party, or originate any civil suit, in matters which shall come or be brought before him as judge, or justice of the peace. Source: 1792.

This article prohibits any judge or justice of the peace from acting as attorney or being of counsel in any matter which could come before the judge or justice of the peace for decision. This article is intended to protect the integrity of the judicial process by prohibiting certain conflicts of interest for judges and justices of the peace. The common law and statutes contain similar prohibitions. Articles 79 and 81 were cited as authority for prohibiting a judge of probate from proving a will when he had written the will for the testator. Moses v. Julian (1863) 45 N.H. 52. For a judge to hear a matter in which he acted as counsel would be inconsistent with the inherent impartiality of his office. In re SchoolLaw Manual (1885) 63 N.H. 574. The acts of a judge of probate who has acted as counsel to one of the parties are not void, but voidable. Steams v. Wright (1872) 51 N.H. 600.


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The fact that there is a separate enumeration of "judge of any court" and "justice of the peace" in this article shows that they are separate offices, and justices of the peace are not judges of a court. Therefore, the requirement under Article 78 that judges must retire at age 70 does not apply to justices of the peace. Keniston v. State (1884) 63 N.H. 37. [ART.| 80. [JURISDICTION AND TERM OF PROBATE COURTS.] All matters relating to the probate of wills, and granting letters of administration, shall be exercised by the judges of probate, in such manner as the legislature have directed, or may hereafter direct: And the judges of probate shall hold their courts at such place or places, on suchfixeddays, as the conveniency of the people may require; and the legislature from time to time appoint. Source: 1784. Amended 1792. The article in the 1784 constitution provided that the "judges of probate of wills, and for granting letters of administration" would set the dates when the probate courts would sit, until the legislature provided otherwise. The article was rewritten in 1792 to give the probate courts exclusive jurisdiction over matters relating to the probate of wills and granting letters of administration, and the legislature the responsibility of appointing the times when the probate court would meet. The article gives the probate court exclusive, original jurisdiction of the probate of wills and the settlement and distribution of the estates of deceased persons. Knight v. Hollings (1906) 73 N.H. 495. The granting of exclusive jurisdiction was in line with the practice in England. Patton v. Patton (1920) 79 N.H. 388. The exclusive jurisdiction of the court has been confirmed in several cases. Because the superior court had no jurisdiction over the estate of a deceased minor child, it could not, in a divorce decree approving the settlement of tort actions resulting from an automobile accident, regulate the transfer of the proceeds of a settlement made to benefit the minor child while the child was still alive. Heath v. Seymour (1970) 110 N.H. 425. A decedent could not, in her will, direct that the supreme court make appointments to fill vacancies in a board of trustees, when the probate court, as part of its duty to administer trusts created by wills, had the duty to appoint trustees needed to execute such trusts. Petition of Straw (1917) 78 N.H. 506. The superior court had no power to require an administrator of an estate to account for his administration upon a bill in equity or to revise proceedings in the probate court, except upon appeal. Glover v. Baker (1912) 76 N.H. 393. An accounting to determine an administrator's liability had to first be rendered in the probate court. Lisbon Savings Bank & Trust Co. v. Estate ofMoulton (1941) 91 N.H. 477. The probate court may have exclusive jurisdiction, but it has only the powers given to it by the legislature, and the legislature defines how the court will exercise these powers. The probate court could exercise its authority over the

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granting of administration of an estate only in accordance with the laws enacted by the legislature. Robinson v. Carroll (1934) 87 N.H. 114. The probate court is not a court of general jurisdiction, and its powers are limited to those conferred on it by statute. Its special jurisdiction, unless enlarged by statute, is limited to the probate of wills, the administration and settlement of estates, the distribution of estates, and other like administrative and ministerial acts. The superior court, by statute, had jurisdiction to determine title to real estate, and the probate court had no jurisdiction, based either on statute or common law, to determine whether certain real estate was an asset of the estate. In re Estate ofO'Dwyer (1992) 135 N.H. 323. A statutory action brought by one co-executor against another was not exclusively within the jurisdiction of the probate court, because it was not a proceeding to settle the estate but was incident to the business of conducting the administration of the estate. Patton v. Patton (1920) 79 N.H. 388. [ART.] 81. [JUDGES AND REGISTERS OF PROBATE NOT TO ACT AS COUNSEL.] No judge, or register of probate, shall be of counsel, act as advocate, or receive any fees as advocate or counsel, in any probate business which is pending, or may be brought into any court of probate in the county of which he is judge or register. Source: 1792. This article prohibits certain conflict of interest situations for judges of probate and registers of probate. Such judges and registers cannot act or receive fees as counsel or advocate in any probate business coming before the probate court in the county in which the person is judge or register. This article has been applied to prohibit a judge of probate from proving a will when he had written the will for the testator {Moses v. Julian (1863) 45 N.H. 52) and to void the acts of a judge of probate in the settlement of an estate when the judge was interested as an executor {Bedell v. Bailey (1876) 58 N.H. 62). The acts of a judge of probate who has acted as counsel to one of the parties are not void, however, but voidable. Steams v. Wright (1872) 51 N.H. 600. [ART.] 82. [CLERKS OF COURTS, BY WHOM APPOINTED.] The judges of the courts (those of probate excepted) shall appoint their respective clerks to hold their office during pleasure: And no such clerk shall act as an attorney or be of counsel in any cause in the court of which he is clerk, nor shall he draw any writ originating a civil action. Source: 1784. Amended 1792. This article regulates the appointment of clerks of court by requiring that judges of all the courts, except the probate court, are to appoint their clerks, who serve at pleasure. The article also prohibits a court clerk from acting as an attorney or bringing a civil action in the court where the clerk serves.


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This article, in 1784, referred to the appointment of clerks by judges in certain specific courts, namely, the superior court of judicature, inferior courts of common pleas, and general sessions of the peace. An amendment in 1792 removed the references to the specific courts and put in an exception for the register of probate. Another amendment in 1792 provided for the election of registers of probate. The final clause of the article was interpreted by the court in the early case of Carlisle v. Dodge (1831) 5 N.H. 386. Although the clause is written broadly enough to prohibit a clerk from originating a civil action in any court, the court held that a clerk was prohibited from making a writ for a civil action only in the court in which the person was the clerk. The court reasoned that a clerk is prohibited from acting as attorney or counsel in any case only in the court of which he is clerk, and that there was no reason to prohibit him from making a writ in another court, if he could act as attorney in another court. Another case clarifies that it is the superior court, acting as a body, and not the county, that exercises control over the hiring and firing of a superior court clerk. Samaha v. Grafton County (1985) 126 N.H. 583. [ART.] 83. [ENCOURAGEMENT OF LITERATURE, ETC.; CONTROL OF CORPORATIONS, MONOPOLIES, ETC.| Knowledge and learning, generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people: Provided, nevertheless, that no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination. Free and fair competition in the trades and industries is an inherent and essential right of the people and should be protected against all monopolies and conspiracies which tend to hinder or destroy it. The size and functions of all corporations should be so limited and regulated as to prohibit fictitious capitalization and provision should be made for the supervision and government thereof. Therefore, all just power possessed by the state is hereby granted to the general court to enact laws to prevent the operations within the state of all persons and associations, and all trusts and corporations, foreign or domestic, and the officers thereof, who endeavor to raise the price of any article of commerce or to destroy free and fair competition in the trades and industries through combination, conspiracy, monopoly, or any other unfair means; to control and regulate the acts of all

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The New Hampshire State Constitution such persons, associations, corporations, trusts, and officials doing business within the state; to prevent fictitious capitalization; and to authorize civil and criminal proceedings in respect to all the wrongs herein declared against. Source: 1784. Amended 1877 and 1903. [The text in the publication, The New Hampshire Constitution 1784, for 2001-2003, contains a typographical error "schools of institutions."]

This article has three main points. First, the article makes it the duty of the legislators and magistrates of the state to "cherish" education; second, public tax money cannot be used to support sectarian schools; and third, the legislature is given the power to enact laws to prevent restraint of trade by trusts and monopolies. The 1784 version of this article was closely patterned after the 1780 Massachusetts Constitution and consisted of the first part of the article dealing with the promotion of education. John Adams was reputedly especially proud of his original language in this provision of the Massachusetts Constitution.24 The article was amended in 1877 to prohibit tax money from being used for schools of any religious sect or denomination. Another amendment in 1903 gave the general court the power to enact laws to prevent unfair competition caused by trusts or monopolies. "Seminaries," as used in the article, includes colleges and universities, as well as schools of the preparatory grade and academies. Sisters of Mercy v. Town ofHooksett (1945) 93 N.H. 301. Promotion of Education Although the first part of the article relating to education had been interpreted before, the most exhaustive and decisive reading was given by the court in Claremont School District v. Governor (1993) 138 N.H. 183. In this case, which has come to be known as Claremont I, the court held that Article 83 imposed a duty on the state to provide a constitutionally adequate education to every educable child in the state public schools and to guarantee adequate funding. The court carefully examined the historical context of this article in order to determine the meaning the article had when it was adopted, and found that the words "shall be the duty...to cherish" constituted not merely an aspiration, but an affirmative command. Although the state could delegate some of the implementation of the duty to local governments, it could not abdicate its constitutional obligation. The duty of supporting schools is placed on the "legislators and magistrates" under the article, so it was for the legislature and governor to define the specific and appropriate means of meeting the obligation. A bill proposed in 2000 failed to satisfy the mandate in Article 83 that the state had the exclusive obligation to fund a constitutionally adequate education because the bill's funding mechanism relied, in part, on local property taxes to pay the costs of an adequate education. Opinion of the Justices (Reformed Public School Financing System) (2000) 145 N.H. 474.


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In another Claremont case in 1997, in which the court held that the system of financing public education then in effect was unconstitutionally disproportionate and unreasonable under Part 2, Article 5, the court determined that the right to a state-funded constitutionally adequate public elementary and secondary education under Article 83 was a fundamental right. This was important, because any state statutes involving governmental actions impinging on a fundamental right are entitled to the strict judicial scrutiny standard of review, requiring a compelling state interest to sustain the legislation. Claremont School District v. Governor (1997) 142 N.H. 462. Cases before Claremont stressed the importance of education as recognized in Article 83. In Farnum 's Petition (1871) 51 N.H. 376, the court stated that "the clause . . . in regard to the encouragement of literature" conclusively showed that "the framers of the constitution, as well as their contemporaries in the legislature, regarded the subject of education as one of public concern, to be cherished, regulated, and controlled by the State" and that "the constitution enjoins the duty, in very general and comprehensive terms, on magistrates and legislators as one of paramount public importance." In Fogg v. Board of Education of Littleton (1912) 76 N.H. 296, the court recognized that public schools, maintained by the state, are the governmental means of protecting the state from the consequences of an "ignorant and incompetent citizenship." Other cases have considered various topics related to education in the light of Article 83, including the legislative power to grant tax exemptions, mandatory school attendance, and hiring of teachers. It was within the power of the legislature to provide tax exemptions to educational institutions. Trustees of Phillips Exeter Academy v. Exeter (1940) 90 N.H. 472. The duty of the state to "cherish" education did not extend to exempting all the property of seminaries and public school from taxation, but only the property that was used for school purposes. Town of New London v. Colby Academy (1898) 69 N.H. 443. Because it was the constitutional duty of the legislature to diffuse knowledge and learning throughout the community, it was within the power of the legislature to enforce mandatory school attendance. State v. Jackson (1902) 71 N.H. 552. The article recognizes the importance of public education, but does not place restrictions on legislative authority to determine how teachers should be hired and dismissed. Coleman v. School District of Rochester (1936) 87 N.H. 465. It has also been held that the words of Article 83 requiring legislators and magistrates to "inculcate the principles of humanity . . . [and] sobriety . . . among the people" did not require the prohibition of the sale of liquor. State v. Roberts (1908) 74 N.H. 476. No Public Money for Sectarian Schools The clause of Article 83 prohibiting the use of money raised by taxation for religious schools or institutions is meant to prevent the support of any particular sect or denomination at taxpayer expense, but not to deprive members of a

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denomination from receiving public benefits because of their beliefs. Opinion of the Justices (1955) 99 N.H. 519. Opinions of the Justices under this portion of Article 83 have examined various legislative proposals affecting sectarian schools or institutions. The court held that Article 83's prohibition on using tax money for sectarian purposes was not violated by the provision of public funds for nursing scholarships and grants in aid to hospitals offering nursing training, even though many of the hospitals were operated under the auspices of certain religious denominations. A proposed law in Opinion of the Justices (1955) 99 N.H. 519 was intended to further the teaching of nursing, a public health purpose, and not to aid any sects or denominations. It was immaterial that some denominations would derive an incidental benefit through the funds. Article 83 was also not violated by bills authorizing school boards to furnish pupils in both public and nonpublic school with certain child benefit services, including medical and school guidance services {Opinion of the Justices (1969) 109 N.H. 578) or requiring school boards to purchase secular textbooks for use in public schools and loan them free of charge to sell them at cost to pupils enrolled in nonpublic schools {Opinion of the Justices (1969) 109 N.H. 578). The prohibition on using tax money for sectarian purposes would have been violated by allowing a real estate tax exemption of $50 to persons with one or more children attending a nonpublic school {Opinion of the Justices (1969) 109 N.H. 578), by authorizing school boards to furnish transportation for pupils attending nonpublic school outside the district {Opinion of the Justices (1969) 109 N.H. 578), and by requiring resident districts to pay up to 75 percent of the resident sending school's tuition to an alternative school, which could include a sectarian school, chosen by a parent or guardian {Opinion of the Justices (Choice in Education) (1992) 136 N.H. 357). Control of Trusts and Monopolies The last part of Article 83 declares the state's fundamental preference for free enterprise and aversion to the evils of monopolies. Free enterprise and a market economy are constitutional rights. New England Household Moving & Storage, Inc. v. Public Utilities Commission (1977) 117 N.H. 1038. The legislature has broad authority to enact legislation to promote the goal of free competition. Appeal ofOmni Communications, Inc. (1982) 122 N.H. 860. Several cases have involved the public utilities commission. The commission's duty is to oversee and regulate those few necessary monopolies so that free trade and private enterprise are disrupted as little as possible. Appeal of Omni Communications, Inc. (1982) 122 N.H. 860. The court, in a decision involving the limits of the authority of the public utilities commission, held that the commission had no authority to regulate radio pagers. In Appeal of Omni Communications, Inc. (1982) 122 N.H. 860, the court reviewed the history of regulated utilities in the state and the adoption of the antimonopoly amendment to Article 83 in 1903. The court found that the


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legislature did not intend that the public utilities commission would regulate all companies and businesses somehow related to the utilities it did regulate, as this could interfere and disrupt free market enterprise. In 1996, the court examined a statute giving authority to the public utilities commission to grant an entity permission to operate as a public utility in the state. The court recognized that, as technological and economic conditions had changed, so had the need for monopolies of practical necessity. The court ruled that electric utility franchises were not exclusive as a matter of law, thus allowing competition where one particular company had previously held an exclusive franchise. The court interpreted the statute in the light of Article 83's stated preference for free enterprise. Any limitation on the right of the people to "free and fair competition" had to be narrowly construed, "with all doubt resolved against the establishment or perpetuation of monopolies." Appeal of Public Service Company (1996) 141 N.H. 13. The court has held that the legislature could constitutionally enact legislation that would have prohibited petroleum suppliers, as a class, from operating retail gasoline stations, because this was a rational means of preventing monopolistic control of the retail gasoline market. Opinion of the Justices (1977) 117 N.H. 533. This would have been a restriction on certain businesses, but for the purpose of promoting free competition. Laws that were found not to violate the anti-monopoly provision include two laws, repealed in 1975 and 1977, respectively—the Fair Trade Law (removed the bar on contracts establishing minimum resale prices of trademarked products) {Corning Glass Works v. Max Dichter Co. (1960) 102 N.H. 505) and the Unfair Sales Act (retailers prohibited from selling merchandise below cost, having the effect of injuring competition) {Mclntire v. Borofsky (1948) 95 N.H. 174)—and a housing authorities law (state housing authority allowed to contract with developers to develop state projects) {Anderson v. McCann (1983) 124 N.H. 249). | ART.) 84. [OATH OF CIVIL OFFICERS.] Any person chosen governor, councilor, senator, or representative, military or civil officer, (town officers excepted) accepting the trust, shall, before he proceeds to execute the duties of his office, make and subscribe the following declaration, viz. I, A.B. do solemnly swear, that I will bear faith and true allegiance to the United States of America and the state of New Hampshire, and will support the constitutions thereof. So help me God. I, A.B. do solemnly and sincerely swear and affirm that I will faithfully and impartially discharge and perform all duties incumbent on me as according to the best of my abilities, agreeably to the rules and regulations of this constitution and laws of the state of New Hampshire. So help me God.* Any person having taken and subscribed the oath of allegiance, and the same being filed in the secretary's office, he shall not be obliged to take said oath again.

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The New Hampshire State Constitution Provided always, when any person chosen or appointed as aforesaid shall be of the denomination called Quakers, or shall be scrupulous of swearing, and shall decline taking the said oaths, such person shall take and subscribe them, omitting the word "swear," and likewise the words "So help me God," subjoining instead thereof, "This I do under the pains and penalties of perjury." Source: 1784. Amended 1792 and 1970. [The text in the publication, The New Hampshire Constitution 1784 2001-2003, contains typographical errors "support the constitution" (see the second paragraph) and "New Hampshie" (third paragraph) and also duplicates the paragraph containing the oath of office at the end of the article.]

This article requires two oaths for various state officers, an oath of allegiance requiring an officer to subscribe allegiance to the state of New Hampshire and the United States, and an oath of office requiring faithful and impartial performance of the duties of the office to which the person was appointed or elected. Town officers are constitutionally excepted from the requirement by Article 84, but are required to take the oaths by statute (RSA 42:1 and RSA 669:9). The article in 1784 was a condensed version of a provision of the 1780 Massachusetts Constitution, and contained a promise to defend against "all treacherous conspiracies and hostile attempts." An amendment in 1792 changed "president" to "governor," shortened the oath of allegiance, and added the provision dispensing with the need to retake the oath once the oath had been taken. In 1970, the oath of allegiance was changed by also requiring allegiance to the United States of America. Any person required by this article to take the oath of allegiance and the oath of office must take the oaths before assuming the duties of office, or that person is not qualified to take official actions under the authority of that office. A person wishing to claim that an action taken by a person is invalid because of the failure to take one or both of the oaths must make a timely objection. In Goodwin v. Milton (1852) 25 N.H. 458, a person was appointed to act as road commissioner when one of the commissioners had a conflict of interest. The specially appointed commissioner had failed to take the oath of allegiance, but the court held that it was too late to object to this failure, once the road commissioner had taken an official act, if the person making the objection knew or should have known that the oath of allegiance had not been taken. A similar situation occurred in Wentworth v. Farmington (1871) 51 N.H. 128, with the same outcome. All the officers required to take the oath under Article 84 commit to "support the constitutions" of the United States and New Hampshire. The responsibilities undertaken by this oath were pointed out by the court in Claremont School District v. Governor (1998) 143 N.H. 154, when it denied the state's motion for a two-year extension of the time within which to remedy the unconstitutional education funding system. The court stated that supporting the constitution of


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New Hampshire required the governor and legislature, who were among those who have taken the oath of office under Article 84, to fulfill their responsibility by remedying the constitutional defects articulated by the court in Claremont School District v. Governor (1997) 142 N.H. 462 without further delay. [ART.] 85. [BEFORE WHOM TAKEN.] The oaths or affirmations shall be taken and subscribed by the governor before a justice of a New Hampshire court, in the presence of both houses of the legislature, by the senators and representatives before the governor and council for the time being, and by all other officers before such persons and in such manner as the general court shall from time to time appoint. Source: 1784. Amended 1792, 1968, and 1984. This article, dating from 1784, was based on a provision in the 1780 Massachusetts Constitution. It was amended in 1792 to reword the section and update terminology. In 1968, an obsolete portion was deleted that dealt with the taking of the oath by those first elected. In 1984, the requirement that the governor's oath be taken before the president of the senate was changed to before a justice of a New Hampshire court. This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 86. [FORM OF COMMISSIONS.] All commissions shall be in the name of the state of New Hampshire, signed by the governor, and attested by the secretary, or his deputy, and shall have the great seal of the state affixed thereto. Source: 1784. Amended 1792. This article states the formal requirements for commissions issued by the governor. The article, based on a provision in the 1780 Massachusetts Constitution, is the same as it was in 1784, except that in 1792 "president" was changed to "governor." This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 87. [FORM OF WRITS.] All writs issuing out of the clerk's office in any of the courts of law, shall be in the name of the state of New Hampshire; shall be under the seal of the court whence they issue, and bear test of the chief, first, or senior justice of the court; but when such justice shall be interested, then the writ shall bear test of some other justice of the court, to which the same shall be returnable; and be signed by the clerk of such court. Source: 1784.

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This article states formal requirements for a writ, which is a document of formal legal process. Writs must be in the name of the state, be under seal of the court, bear "test" (teste or formal attestation) of the justice, and be signed by the clerk of the court. The article is very similar to a provision in the 1780 Massachusetts Constitution. The requirements of this article are "largely a matter of form." Opinion of the Justices (1979) 119 N.H. 325. Before the Revolution, writs in the province of New Hampshire were issued in the King's name. The original purpose of the article was to avoid the appearance of recognizing the royal authority. Parsons v. Swtf (1855) 32 N.H. 87. The "writs" referred to in the article are "writs of mesne process by which civil actions are commenced, and writs of execution by which the judgments of the court are executed." Smith v. Tallman (1934) 87 N.H. 176. Such writs did not include writs of venire, used by the court to direct town clerks to select the requisite number of persons to serve as jurors {State v. Bradford (1876) 57 N.H. 188) or a mittimus (warrant of commitment) issued by a court for the detention of a person who had violated a condition of his suspended sentence {Carpenter v. Berry (1948) 95 N.H. 151). The requirement for the signature of the clerk was for the purpose of authenticating the writ. Smith v. Tallman (1934) 87 N.H. 176. The signature of the clerk or the seal of the court served to identify the process as issuing from the proper court. Reynolds v. Damrell (1849) 19 N.H. 394. Reynolds v. Damrell (1849) 19 N.H. 394 held that the defect of the lack of teste of a writ was merely formal, unlike the requirement for the signature of the clerk or the seal of the court. However, the clerk's signature was not required in a municipal court that had no clerk, because the signature of the justice was sufficient, and it would have been a "meaningless absurdity" to require the justice to also sign as clerk. The court has refused to hold certain writs invalid because they did not comply with the formal requirements of this article. In Parsons v. Swett (1855) 32 N.H. 87, a writ was upheld that was issued over the printed signature of a former chief justice of the superior court. Writs issued by police courts (predecessors of the district courts) that had no clerks were upheld although they had only the seal of the court and the signature of the justice in Smith v. Tallman (1934) 87 N.H. 176. Parsons and Smith were cited as authority in Opinion of the Justices (1979) 119 N.H. 325, when the court held that a bill that provided for the use of a universal writ in the district and municipal courts did not violate Article 87. However, in the early case of Hutchins v. Edson (1817) 1 N.H. 139, a writ of execution issued without the required seal was held to be void. Because the court voided the writ, a sheriff was held not liable for the escape of his prisoner because the writ of execution upon which the prisoner was held in custody was void.


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[ART.] 88. [FORM OF INDICTMENTS, ETC.] All indictments, presentments, and informations, shall conclude, "against the peace and dignity of the state." Source: 1784. The required form for the conclusion of indictments, presentments, and informations, different forms of criminal complaints, is stated by this article. This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 89. [SUICIDES AND DEODANDS.J The estates of such persons as may destroy their own lives, shall not for that offense be forfeited, but descend or ascend in the same manner, as if such persons had died in a natural way. Nor shall any article, which shall accidentally occasion the death of any person, be henceforth deemed a deodand, or in any wise forfeited on account of such misfortune. Source: 1784. This article expressly rejects two common law concepts relating to forfeiture of property. Under common law, any instrument by which a person was killed, namely, a deodand, or its value, was subject to forfeiture. Suicide was prohibited by common law, and, as a penalty for suicide, a suicide's estate was subject to forfeiture. This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 90. [EXISTING LAWS CONTINUED IF NOT REPUGNANT.) All the laws which have heretofore been adopted, used, and approved, in the province, colony, or state of New Hampshire, and usually practiced on in the courts of law, shall remain and be in full force, until altered and repealed by the legislature; such parts thereof only excepted, as are repugnant to the rights and liberties contained in this constitution: Provided that nothing herein contained, when compared with the twentythird article in the bill of rights, shall be construed to affect the laws already made respecting the persons, or estates of absentees. Source: 1784. This article provides for the continuation of the common law and statutes amending it, in existence at the time of the adoption of the 1784 constitution, until amended or repealed by the legislature, except those laws that conflicted with the constitution. The first part of this article is similar to a provision in the 1780 Massachusetts Constitution. The New Hampshire version added the proviso relating to Part 1, Article 23, which prohibits retrospective laws. The "estates of absentees" refers to the estates of Tories who fled the state at the time of the Revolution. The laws "heretofore . . . adopted, used, and approved" refers to the body of English common law and the statutes amending it in effect at the time of the

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adoption of the 1784 constitution. The court clarified that the common law continued by Article 90 included law that had not been actually applied by the courts in New Hampshire in State v. Rollins (1837) 8 N.H. 550, a case in which a man was charged with kidnapping a six-year-old boy. The defendant argued that the crime of kidnapping was not recognized in the state because there was no statute in force prohibiting kidnapping, and that the common law on kidnapping did not apply because it had never been the subject of actual and usual practice in the state. The court reviewed the history of the acceptance and usage of the English common law in Massachusetts and New Hampshire, and concluded that Article 90 continued in New Hampshire the body of English common law and the statutes amending it, so far as they were consistent with the institutions and condition of this country. The court stated that Article 90 was a continuation of a law passed by the legislature in April 1777, which had reestablished the general system of laws then in force, except such parts as were incompatible with the new form of government established in 1776. Examples of cases in which the common law was found to apply are Currier v. Perley (1851) 24 N.H. 219 (common law in relation to tenancies at will from year to year and from month to month in force, except when modified by statute) and Dennett v. Dennett (1862) 43 N.H. 499 (common law rule in Shelley's case was part of law of New Hampshire in 1818 when will was written). An example of a rejection of the common law because it was inconsistent with the institutions of society of the state is found in Cole v. Lake Company (1874) 54 N.H. 242. In this case, a feudal common law rule that a fee could never pass by deed without the word "heirs" being used was inapplicable in New Hampshire. [ART.] 91. [HABEAS CORPUS.] The privilege and benefit of the habeas corpus, shall be enjoyed in this state, in the most free, easy, cheap, expeditious, and ample manner, and shall not be suspended by the legislature, except upon most urgent and pressing occasions, and for a time not exceeding three months. Source: 1784.

This article guarantees the remedy of habeas corpus, but allows its suspension by the legislature for up to three months. The article is the same as a provision of the 1780 Massachusetts Constitution, except that the New Hampshire article is more protective, allowing suspension of the right only up to three months, rather than 12 as in the Massachusetts version. The right to habeas corpus dates at least back to the English Magna Carta of 1215, and is also embodied in Article I, Section 9 of the United States Constitution. The purpose of the writ of habeas corpus is to require a person detaining an individual to produce the individual in court and explain the reason for the detention.

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The New Hampshire Supreme Court has heard many cases dealing with issues concerning habeas corpus, but has not directly interpreted this article. [ART.[ 92. [ENACTING STYLE OF STATUTES.| The enacting style in making and passing acts, statutes, and laws, shall be, Be it enacted by the Senate and House of Representatives in General Court convened. Source: 1784 This article states the official wording to be used by the legislature as the enacting clause in a bill or as the resolving clause in a joint resolution. The article is modeled on a similar provision in the 1780 Massachusetts Constitution. Failure to frame a joint resolution in the style required by Article 92 was among the reasons given by the court in In re School-Law Manual (1885) 63 N.H. 574, when it invalidated a joint resolution. The resolution purported to give authority to an appointed commissioner to compile the statutes relating to schools and to form rules and proceedings in towns, to be valid when approved by a majority of the justices of the supreme court. The resolution was also defective for other reasons, including its being an illegal delegation of lawmaking power to the commissioner and the supreme court. [ART.] 93. [GOVERNOR AND HOLDING OTHER OFFICES.]

JUDGES

PROHIBITED

FROM

No governor, or judge of the supreme judicial court, shall hold any office or place under the authority of this state, except such as by this constitution they are admitted to hold, saving that the judges of the said court may hold the offices of justice of the peace throughout the state; nor shall they hold any place or office, or receive any pension or salary, from any other state, government, or power, whatever. Source: 1784. Amended 1792. This article prohibits the governor and judges from holding other state offices, except that judges may also be justices of the peace. The governor and judges are also prohibited from holding an office or receiving a pension or salary from any other state or government. This article was amended in 1792 to change "president" to "governor." There was also an apparently unauthorized change in the engrossed parchment copy of the constitution as amended in 1792, changing "superior court" to "supreme judicial court," which has become accepted. The version from 1784 was patterned after the 1780 Massachusetts Constitution. This article was included in the 1784 constitution to curtail the practice of plural office holding common in the time around the Revolution. There are no cases of the New Hampshire Supreme Court interpreting this article.

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[ART.] 94. [INCOMPATIBILITY OF OFFICES; ONLY TWO OFFICES OF PROFIT TO BE HOLDEN AT SAME TIME.] No person shall be capable of exercising, at the same time more than one of the following offices within this state, viz. judge of probate, sheriff, register of deeds; and never more than two offices of profit, which may be held by appointment of the governor, or governor and council, or senate and house of representatives, or superior or inferior courts; military offices, and offices of justice of the peace excepted. Source: 1784. Amended 1792. This article specifies that a person cannot hold, at the same time, more than one of the offices of judge of probate, sheriff, and register of deeds. The article also prohibits the holding of two offices of profit, resulting from appointment by various appointing authorities. The article is the same as it was in 1784, except for an amendment in 1792, changing "president" to "governor." Closely based on the 1780 Massachusetts Constitution, the New Hampshire article also included the "superior or inferior court" as appointing powers for offices of profit to which the constitutional limitation applied. This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 95. [INCOMPATIBILITY OF CERTAIN OFFICES.] No person holding the office of judge of any court, (except special judges) secretary, treasurer of the state, attorney-general, register of deeds, sheriff, collectors of state and federal taxes, members of Congress or any person holding any office under the United States, including any person in active military service, shall at the same time hold the office of governor, or have a seat in the senate, or house of representatives, or council; but his being chosen and appointed to, and accepting the same, shall operate as a resignation of his seat in the chair, senate, or house of representatives, or council; and the place so vacated shall be filled up. No member of the council shall have a seat in the senate or house of representatives. Source: 1784. Amended 1792, 1950, 1958, and 1980. This article defines certain offices, the holding of which is incompatible with holding the office of governor, legislator, or member of the executive council, and makes the acceptance of an incompatible office an automatic resignation of the person's seat in the legislature or council or as governor. The article originally was similar to a provision of the 1780 Massachusetts Constitution. An amendment in 1792 substituted "judge of any court" for references to specific courts, added collectors of excise and state and continental taxes, members of Congress or any person holding any office under the United States, and deleted "president, professor or instructor of any college." The same amendment also added the final sentence prohibiting an executive councilor from holding a seat in the legislature. In 1950, commissary-general was deleted. In 1958, the general term "collectors of state and federal taxes" was substituted

209


for the reference to collectors of excise, state and continental taxes and the obsolete reference to military officers receiving pay from the "Continent" was changed to pay from the "United States." In 1980, the reference to military officers receiving pay from the state or the United States, excepting officers of the militia called up in an emergency, was changed to refer only to persons in active military service. This article has not been interpreted by the New Hampshire Supreme Court. [ART.] 96. OFFICE.]

[BRIBERY

AND

CORRUPTION

DISQUALIFY

FOR

No person shall ever be admitted to hold a seat in the legislature or any office of trust or importance under this government, who, in the due course of law, has been convicted of bribery or corruption, in obtaining an election or appointment. Source: 1784. This article prohibits persons who have been convicted of bribery or corruption from obtaining or holding certain government offices or a seat in the legislature. This article is virtually the same as a provision in the 1780 Massachusetts Constitution. The New Hampshire Supreme Court has not interpreted this article. [ART.J 97. [VALUE OF MONEY, HOW COMPUTED.] (Repealed in 1950) This article was part of the 1784 constitution. The article was similar to a provision in the 1780 Massachusetts Constitution, and stated a fixed value (6 shillings, 8 pence) per ounce of silver, to be used when computing the value of sums of money mentioned in the constitution. Sums of money were mentioned in the constitution in the property requirements for governor, senator, and representative, all removed in 1852. The article had long been obsolete when it was repealed in 1950. State v. Jackson (1898) 69 N.H. 511 contains a discussion of the comparative value of gold, silver, and currency around the time of the 1784 constitution. [ART.] 98. [CONSTITUTION, WHEN TO TAKE EFFECT.] To the end that there may be no failure of justice, or danger to the state, by the alterations and amendments made in the constitution, the general court is hereby fully authorized and directed to fix the time when the alterations and amendments shall take effect, and make the necessary arrangements accordingly. Source: 1792.

210


This article gives the legislature the power to fix the time when amendments to the constitution will take effect. The effective date of the 1784 constitution was set to be the first Wednesday of June 1784 by the convention that proposed the constitution. When the constitution was revised in 1792, a provision was required to provide for when amendments to the original constitution would take effect. In 1792, the legislature passed an act setting effective dates in 1793 for the amendments ratified by the voters in 1792. It then became the practice of the legislature to delegate by law its power to set the time when amendments would take effect to constitutional conventions. The power, in fact, has been exercised by conventions ever since 1850, requiring that adopted amendments would take effect when the governor proclaimed their adoption. In 1889, the house of representatives requested the court to give its opinion on whether the legislature could change the time for amendments to take effect, after a convention had already fixed a time, pursuant to the power delegated to it by the legislature. The court held that under Article 98 the legislature had no power to change the effective time of an amendment, once it had delegated its authority to fix the time to a constitutional convention, and the convention had exercised that power. Opinion of the Justices (1889) 76 N.H. 612. In 1961, the court decided two more Article 98 cases, consistent with the holding from 1889. In Opinion of the Justices (1961) 103 N.H. 333, the court held that the legislature could not postpone the effective dates of amendments declared adopted by the governor on November 30, 1960. The governor had proclaimed the adoption of the amendments in accordance with a resolution adopted by the 1956 convention, the convention having adopted a resolution providing that the amendments would take effect "when their adoption is proclaimed by the Governor," in accordance with authority delegated to it by the legislature. The legislature did not need to take any further action in connection with the amendment. The other 1961 case concerned the right of a litigant to a jury trial, which depended on the effective date of an amendment to Part 1, Article 20, increasing the required minimum amount in controversy for a jury trial in a civil case from $100 to $500. The amendment had received the approval of the required twothirds voters of the state on November 8, 1960, and was proclaimed adopted by the governor on November 30, 1960. The value in controversy in the case was $260. The defendant requested a jury trial in October of 1959, and the plaintiff moved to have the action tried by the court on November 28, 1960. The court held that the defendant was entitled to a jury trial because the amendment increasing the minimum amount in controversy did not go into effect until November 30, 1960, and the amendment was not retroactive in its application. Rix v. Asadoorian (1961) 103 N.H. 330. [ART.] 99. [REVISION OF CONSTITUTION PROVIDED FOR.] (Repealed in 1980)


211

This article in the 1784 constitution required the legislature to call elections for a constitutional convention after seven years from the time the constitution took effect, that delegates would be elected in the same manner as representatives to the house, and that amendments proposed by the convention would take effect if approved by two-thirds of the qualified voters present and voting. A 1792 amendment set up detailed procedures for the calling of conventions, required that the question of calling a convention to revise the constitution had to be submitted to the people after seven years, and specified that a convention would be held if a majority of the people voted in favor of it. When this article was repealed in 1980, the information about election of delegates, the calling of a convention if a majority of qualified voters present and voting approved it, and the approval of amendments by two-thirds of the qualified voters present and voting was transferred to Article 100. This article was similar to a provision in the 1780 Massachusetts Constitution, although in Massachusetts the voters were given the option of holding a convention in 1795, while in New Hampshire elections for a convention were required to be held in 1791. Cases decided under this article established that convention delegates could be elected by nonpartisan ballot {Opinion of the Justices (1973) 113 N.H. 149) and that the legislature could choose the time of the election of delegates {Opinion of the Justices (1911) 76 N.H. 586). These topics are now included in Article 100. [ART.] 100. [ALTERNATE AMENDMENTS.!

METHODS

OF

PROPOSING

Amendments to this constitution may be proposed by the general court or by a constitutional convention selected as herein provided. (a) The senate and house of representatives, voting separately, may propose amendments by a three-fifths vote of the entire membership of each house at any session. (b) The general court, by an affirmative vote of a majority of all members of both houses voting separately, may at any time submit the question "Shall there be a convention to amend or revise the constitution?" to the qualified voters of the state. If the question of holding a convention is not submitted to the people at some time during any period of ten years, it shall be submitted by the secretary of state at the general election in the tenth year following the last submission. If a majority of the qualified voters voting on the question of holding a convention approves it, delegates shall be chosen at the next regular general election, or at such earlier time as the legislature may provide, in the same manner and proportion as the representatives to the general court are chosen. The delegates so chosen shall convene at such time as the legislature may direct and may recess from time to time and make such rules for the conduct of their convention as they may determine. (c) The constitutional convention may propose amendments by a threefifths vote of the entire membership of the convention.

212

The New Hampshire State Constitution Each constitutional amendment proposed by the general court or by a constitutional convention shall be submitted to the voters by written ballot at the next biennial November election and shall become a part of the Constitution only after approval by two-thirds of the qualified voters present and voting on the subject in the towns, wards, and unincorporated places. Source: 1792. Amended 1964 and 1980.

This article provides that (1) either a constitutional convention or the legislature may propose amendments to the constitution by a three-fifths vote of the entire membership of the convention or of each house of the legislature, (2) proposed questions must be submitted to the voters at the next biennial November election, and (3) proposed amendments take effect if approved by two-thirds of the qualified voters present and voting. The article also requires that the question of holding a convention to revise the constitution must be submitted to the voters at least once every ten years, that a convention will be held if approved by a majority of the qualified voters present and voting, and that delegates to a convention must be elected in the same manner as representatives. The text of this article was added to the constitution in 1792 and required that the question of whether to hold a convention be submitted to the voters every seven years. In 1964, the article was amended to allow the legislature to propose amendments by a three-fifths vote of the entire membership of each body and to require that the question of whether to hold a convention be submitted to the voters at least once in ten years, instead of every seven. The 1964 amendment also included language in Article 99 regarding the election of delegates and the approval of the calling of a convention by a majority of the voters. In 1980, the article was amended to require a three-fifths vote of the entire membership of a constitutional convention, rather than a majority, to propose an amendment to the constitution (this equalized the voting requirement for conventions and the legislature) and to require that all proposed amendments be submitted at the next biennial November election. The 1980 amendments also incorporated provisions from repealed Article 99, relating to the required twothirds majority approval for ratification of amendments. The most recent constitutional convention was held in 1984. The question of whether to call a convention did not receive a majority vote when it appeared on the ballot in 1992 and 2002. When the article was amended in 1964 to allow the legislature, as well as a specially elected convention, to propose amendments to the constitution, New Hampshire was finally no longer the only state that did not allow a legislative method of proposing amendments to its constitution. This issue had often been debated at conventions, but had only appeared on the ballot for ratification twice before 1964, both times from proposals of the 1850 convention. It is understandable that conventions were reluctant to dilute their own power by allowing the legislature to share its authority to propose constitutional amendments.


213

The 1980 amendment requiring that all proposed amendments from either a convention or the legislature appear on the next biennial November ballot was almost unanimously adopted by the legislature. Conventions in 1948, 1956, 1964, and 1974 had placed their proposed amendments on more than one ballot. The convention of 1974 spread its 27 proposed amendments over six different ballots from 1974 to 1980. Proponents of requiring voting on all proposals at the biennial November election argued that it would cut down the number of amendments proposed by conventions, prevent amendments from being submitted at low-turnout primary elections, and assure that voters would not have to act on stale recommendations.25 The constitutional requirement for "a three-fifths vote of the entire membership of each house at any session" under paragraph (a) is a mandatory requirement, but the procedure by which the vote is obtained in each house is to be determined by each house's own rules of proceedings. In Bednar v. King (1970) 110 N.H. 475, various irregularities in the proceedings in the house and the senate did not serve to invalidate the adoption of a concurrent resolution that contained a proposed amendment to the constitution. Whether a ballot cast by means of a voting machine would qualify as a "written ballot" as described in paragraph (c) was questioned in 1974, just before the holding of the biennial election. Several municipalities in the state had facilities that allowed voting only by voting machine and would not be using a written ballot. The court determined that the purpose of the requirement in paragraph (c) for a written ballot was to "ensure the secrecy and integrity of the voting process and to provide a method of voting other than by voice or show of hands," and that a voting machine was consistent with that purpose. Opinion of the Justices (1974) 114 N.H. 711. Cases decided under former Article 99 relating to provisions now in Article 100 established that convention delegates could be elected by nonpartisan ballot {Opinion of the Justices (1973) 113 N.H. 149) and that the legislature could choose the time of the election of delegates {Opinion of the Justices (1911) 76 N.H. 586). The final paragraph of Article 100 requires that all questions proposed either by the legislature or a convention must be submitted to the voters by written ballot at the next biennial November election. A case decided before this requirement was added to the article in 1980 held that, for amendments submitted by the general court, the legislature could enact a statute authorizing the general court to set the time and mode of submitting constitutional amendments to the voters. Opinion of the Justices (1971) 111 N.H. 197. The legislature may prescribe matters of form as to the ballot (see RSA 663), but any proposed amendments must appear on a written ballot at the biennial November election following the vote to propose the amendment.

214


[ART.[ 101. [ENROLLMENT OF CONSTITUTION.] This form of government shall be enrolled on parchment, and deposited in the secretary's office, and be a part of the laws of the land and printed copies thereof shall be prefixed to the books containing the laws of this state, in all future editions thereof. Source: 1784. This article provides for the enrollment on parchment of the constitution of 1784 and requires that the constitution be printed in the books containing the state laws. This article is virtually the same as a provision of the 1780 Massachusetts Constitution. Unfortunately, there is no known parchment copy of the constitution of 1784. The earliest existing parchment copy of the constitution was created after the amendments adopted by the voters in 1792 were incorporated into the constitution. This copy contains a number of nonsubstantive, minor changes in punctuation and wording that have become an accepted part of the constitution.

NOTES 1. Journal of the Convention to Revise the Constitution, January 1889 (Manchester: John B. Clarke, 1889), p. 39. 2. Concord Evening Monitor, December 12, 1888. 3. The difference between direct contempt and indirect contempt was explained by the court in Town of Nottingham v. Cedar Waters, Inc. (1975) 118 N.H. 282. A direct criminal contempt is contempt "committed in the presence of the court and in its immediate view, all elements of the contempt being clearly observable by the court." Indirect contempt is "committed outside the presence of the court and without the judge having full personal knowledge of every element of the contempt. Establishment of the contempt thus depends upon proof of facts of which the court could not take judicial notice." 4. This was the "Dartmouth College Case," which was decided in favor of the state's controlling the college's charter in 1817, but reversed by the United States Supreme Court in Dartmouth College v. Woodward (1819) 17 U.S. 518. 5. New Hampshire General Court Ethics Booklet, RSA 14-B, Ethics Guidelines and Procedural Rules (November 2000), Part Two, Ethics Guidelines, Sect. 4, Prohibited Activities, paragraph I. 6. Reynolds v. Sims (1964) 377 U.S. 533 and a group of related cases set the "one person, one vote" standard. 7. The Concord Monitor, May 8, 1956. 8. Chief Justice Charles Doe of the New Hampshire Supreme Court concluded in his famous dissent in Hale v. Everett (1868) 53 N.H. 9 that, based on historical evidence, the "Protestant" test was simply an "anti-Catholic" test. Chief Justice Doe was a highly respected judge who sat on the state's highest court for 35 years. 9. See Leon W. Anderson, To This Day: The 300 Years of the New Hampshire Legislature (Canaan, NH: Phoenix Publishing, 1981), pp. 169-183 for a discussion of the tumultuous 1887 session.


215

10. A senator who participated in the impeachment trial wrote an account of the trial that includes some documents relating to the trial. See Mary E. Brown, The Impeachment Trial (Pittsfield, NH: Lynxfield Publishing, 2001). 11. Journal of the Convention to Revise the Constitution, May 1984 (Concord: Evans Printing Co., 1984), pp. 299-300. 12. Between 1862 and 1912, the legislature had to decide elections for chief executives whose terms began in 1863, 1871, 1874, 1887, 1889, 1891, 1907, and 1913. State of New Hampshire Manual for the General Court (Concord, NH: Department of State, 2001), p. 91, notes 11, 12, 14-18. 13. The governor's pocket veto power became a particular issue after Governor Meldrim Thomson made extensive use of the pocket veto at the end of the 1973 legislative session, when he killed over 20 bills after the legislature adjourned by refusing to sign them. The 1974 constitutional convention presented the voters with the option of eliminating the pocket veto in February 1976, but the change was not adopted. The proposed solution in 1976 would have given the governor ten days instead of five days to act on legislation submitted to him and required the governor to recall the legislature to reconsider any bills vetoed after the legislature had adjourned. 14. Laws of 1829, ch. 100, Laws of New Hampshire, Vol. 9 (1821-1829), p. 879. 15. Laws of 1829, ch. 104, Laws of New Hampshire, Vol. 9 (1821-1829), p. 896. 16. Report to the Fifteenth Constitutional Convention by the Commission to Study the State Constitution (Concord: Evans Printing Co., 1964), pp. 17-18. 17. See Richard F. Upton, "The Independence of the Judiciary in New Hampshire," 1 New Hampshire Bar Journal, 28 (1959), for a detailed account of this period. 18. As the judiciary was reorganized, the name of the highest court went back and forth from superior court of judicature to supreme judicial court (1813), superior court of judicature (1816), supreme judicial court (1855), superior court of judicature (1874), and supreme court (1876). Until 1901, the highest court sat at both law term and trial term. The law term and trial term were made separate in the modern structure of the court system set out in Laws of 1901, ch. 78, with a supreme court acting as an appellate court and a superior court as the highest trial court. 19. Hon. Robert J. Lynn argues in "Judicial Rule-Making and the Separation of Powers in New Hampshire: The Need for Constitutional Reform, 42 New Hampshire Bar Journal 44 (2001), p. 47 that the court went too far in this case and deprived the legislature of any meaningful role in regulating court practice and procedure, as it had historically exercised in New Hampshire. 20. Laws of 1929, ch. 21. 21. Laws of 1791, ch. 94, Laws of New Hampshire, Vol. 5 (1784-1792), p. 732. 22. Journal of the Convention to Revise the Constitution, June 1912 (Manchester: John B. Clarke Co., 1912), p. 383. 23. Charles G. Douglas, III, Manual for Notaries Public and Justices of the Peace (Orford, NH: Equity Publishing Corp., 1991), p. 26. 24. David McCullough, John Adams (New York: Simon & Schuster, 2001), pp. 222223. 25. The Concord Monitor, October 28, 1980.


Tables and Appendices

Table 1 Constitutional Conventions in New Hampshire

Year of Convention Convention of 17781 Convention of 1781

Convention Convention Convention Convention Convention Convention Convention

of of of of of of of

1791 1850 1876 1889 1902 1912 1918

Convention of 1930 Convention of 1938 Convention Convention Convention Convention Convention

of of of of of

1948 1956 1964 1974 1984

Dates of Convention Convened June 10, 1778, Oct. 13, 1778; draft constitution completed June 5, 1779; met to count returns, Sept. 21, 1779 Convened June 5 or 12, 1781/ draft constitution completed Sept. 14, 1781; met Jan. 23, 1782 to count returns; met Aug. 1782 and completed 2nd draft constitution Aug. 21, 1782; met Dec. 31, 1782 to count returns; met June 3, 1783 and completed 3rd draft constitution; met Oct. 31, 1783 to count returns Sept. 7-16, 1791; Feb. 8-24, 1792 Nov. 6-22, 1850; Dec. 3, 1850 - Jan. 3, 1851 Dec. 6-15, 1876 Jan. 2-12, 1889 Dec. 2-19, 1902 June 5-22, 1912 June 5-7, 1918; Jan. 13-29, 1920; Jan. 28, 1921; Feb. 16, 1923 June 4-13, 1930 May 11, 1938-June 1, 1938; Nov. 8, 1938; Sept. 2 3 26, 1941 May 12, 1948-June4, 1948 May 15, 1956-June 13, 1956; Dec. 2-4, 1959 May 13, 1964-June 10, 1964; July 8, 1964 May 8, 1974-June26, 1974 May 9, 198-June28, 1984

218


Table 2

Constitution Amendments Proposed for Ratification Grouped by Topic (Note: This chart does not contain every topic) Topic Taxation Inheritance tax (alone or in combination) Tax reform (two or more tax topics in same question) Income tax (alone or in combination) Current use taxation Taxation of franchises Timber tax (alone or in combination) Stock-in-trade tax (alone or in combination) Estate tax Public utilities tax Governor's Powers Governor, item veto Governor, take away pocket veto power Governor's executive powers Four-year term for governor Authority of governor (and council) to adjourn or prorogue (extend recess of) legislature Gubernatorial succession Executive Council Councilor districts to be based on population Substitute lieutenant-governor for council Housekeeping amendment to reflect that councilors elected from councilor districts, not counties Abolish executive council

Amendment Adopted* 1902

1968 1902 1942

Amendment Rejected* 1912, 1938, 1912, 1948, 1912, 1930,

1920, 1921, 1948, 1964 1923, 1938, 1964 1920, 1921, 1938, 1964

1912, 1938 1948, 1964 1930 1948 1912,1920, 1930 1976

1956, 1966, 1968 1970, 1982, 1984 1792, 1976,1984 1792, 1889, 1968, 1984

1976, 1980

1912 1792,1850 1980

1850

219


Topic House and Senate Size and apportionment of house Annual vs. biennial legislative sessions Time of meeting of legislature Calling of special legislative sessions by legislature Legislative mileage and compensation Limitations on adjournment of legislature Legislative procedure (roll calls, journals, time of organizational meeting) Increase size of senate Basis of representation in senate Senatorial districts, allowing division of towns, etc. Residency requirements for senators Age requirements for senators (alone or in combination with other offices) Filling of vacancies in senate New senate elections in case of plurality Judicial Branch Jurisdiction of police courts Creation of court districts Justices of the peace, jurisdiction, appeals Election of judges Judges to hold office during good behavior Set age limitation for judges

Amendment Adopted* 1876, 1889, 1942, 1960, 1964, 1978 1876, 1966 (invalidated), 1984 1889

Amendment Rejected* 1850, 1920, 1948, 1850, 1976,

1902, 1912, 1921, 1930, 1976, 1984 1970, 1972, 1978

1976 1976

1889, 1960, 1966 (invalidated), 1984 1948, 1966

1964, 1968, 1970, 1972, 1974, 1976, 1978

1966,1974

1850

1876

1792, 1850, 1912, 1964, 1974, 1984 1850

1964 1978 1976

1966, 1978, 1980 1980, 1984, 1998

1889 1968 1912 1792,1876

1902 1976 1850 1850

1792 1792

220


Topic Judicial Branch (cont.) Remove age limitation for judges Judicial compensation Supreme and superior courts made constitutional courts Chief justice of supreme court administrative head of courts Rights of commissioned officers in cases of impeachment (including judges) Rules governing the judicial branch Bill of Rights Topics Bill of Rights gender neutral Prohibit discrimination Right to bear arms Sectarian references in Art. 6 of Bill of Rights Public's right-to-know Voting rights; right to hold elective office Conscientious objectors Right to counsel at state expense if need is shown Reduce legal burden of proof to commit a person acquitted of a crime by reason of insanity Change of venue, criminal defendant Jury trial amount in controversy Right to free speech Funding of state-mandated programs Home rule

Amendment Adopted*

Amendment Rejected* 1850 1978

1966 1978 1966 1978

2002 1980

1974 1982 1968 1976 1902, 1912, 1942, 1956, 1958, 1968, 1976, 1984 1964 1966

1978 1850 (twice), 1876,1889,1902, 1912, 1920 1902, 1921, 1930, 1938, 1968, 1972, 1980 1920, 1950

1984 1978 1876, 1960, 1988

1956, 1976, 1984, 1986, 1992

1968 1984 1966, 1984

2000

221


Topic Restrictions on Use of Public Money No use of public money or credit to benefit corporation Restriction of motor vehicle revenues for highway purposes (highway fund) No use of public money for religious schools Retirement funds restricted Lottery revenues used for education Miscellaneous Civil pensions, one-year restriction Abolish property requirements for office Abolish religious test for office State militia Method of amending constitution No footnotes in budget bills Administrative rules veto

Amendment Adopted* 1876

Amendment Rejected* 1850

1938 1876 1984 1990

1850 (2nd vote) 1876 1976 1792,1964, 1980

1850,1912,1920, 1974, 1976 1792, 1850 (1st vote) 1792,1850 1948 1850, 1948

1984 1988, 1992

* The year is the year the question appeared on the constitutional question referendum ballot.


222 Table 3

Amendments to the Constitution, 1792-2002 (Beginning in 1966, Amendments also Proposed by Legislature)

Year Convention Convened 1791 1850 1876 1889 1902 1912 1918

1930 1938 1948 1956

1964

1974

Year of Vote on Amendment(s) 1792 1851 1852 1877 1889 1903 1912 1920 1921 1923 1930 1938 1942 1948 1950 1956 1958 1960 1964 1966 1966* 1968 1968* 1970* 1972* 1974 1974* 1976 1976* 1978 1978* 1980 1980*

Amendments Proposed to Voters

Number of Amendments Ratified

97 15 3 13 7 10 12 7 4 1 5 4 3 6 5 3 3 4 8 7 1 6 4 4 2 5 2 12 2 4 3 6 2

56 0 1 11 5 4 4 0 0 0 0 1 3 1 2 2** 3 4 5 6 I***

5 3 1 0 2 1 4 0 2 1 2 2

Tables and Appendices Year Convention Convened 1984

223

Year of Vote on Amendment(s) 1982* 1984 1984* 1986* 1988* 1990* 1992* 1998* 2000* 2002* Total

Amendments Proposed to Voters 3 10 3 1 2 1 3 1 1 1

Number of Amendments Ratified 2 6 2 0

296

1 1 0 0 0 0 144

* Amendments proposed by the legislature. **Not including an amendment ratified in 1956 but invalidated in 1957 ***Partially invalidated in 1966 1. There are no journals for the conventions of 1778 or 1781, so there is no official record of the exact dates of meeting. Lynn W. Turner, The Ninth State: New Hampshire's Formative Years (Chapel Hill: University of North Carolina Press, 1983), pp. 18, 21 2. The convention was called to meet on the first Tuesday of June, but there is some doubt as to whether it actually met on the first or second Tuesday of June.

224


Appendix 1: Text of 1776 Constitution

This text is transcribed from the Journal of the House of Representatives under the Constitution adopted January 5, 1776, in the handwriting of Noah Emery, Assistant Clerk of the House. The journal is located at the New Hampshire Department of State, Division of Records Management and Archives: In Congress at Exeter Jan'y 5th 1776 Voted That this Congress Take up Civil Government for this Colony in the manner & Form Following Viz— We the Members of the Congress of New Hampshire Chosen and Appointed by the Free Suffrages of the People of Said Colony,—and—Authorized and Impowered by them to meet together, and use Such means and Pursue Such Measures as we Should Judge best for the Public Good; And in Particular to Establish Some Form of Government, Provided that Measure Should be recommended by the Continental Congress: And a Recommendation to that Purpose having been Transmitted to us From the Said Congress: Have Taken into our Serious Consideration the Unhappy Circumstances, into which this Colony is Involved by means of Many Grievous and Oppressive Acts of the British Parliament, Depriving us of our Natural & Constitutional rights & Priviledges; To Enforce Obedience to which Acts, A Powerfull Fleet and Army have been Sent into this Country, by the Ministry of Great Britain, who have Exercised a Wanton & Cruel Abuse of their Power, in Destroying the Lives & Properties of the Colonists in many Places with Fire & Sword: Taking the Ships & Lading from many of the Honest and Industrious Inhabitants of this Colony Employ'd in Commerce, Agreeable to the Laws & Customs a long time used here.— The Sudden & Abrupt Departure of his Excellency John Wentworth Esq: our Late Governor, & Several of the Council, Leaving us Destitute of Legislation,— and no Executive Courts being open to Punish Criminal Offenders; whereby the Lives & Propertys of the Honest People of this Colony, are Liable to the Machinations & Evil Designs of wicked men; Therefore for the Preservation of Peace and good order, and for the Security of the Lives & Properties of the Inhabitants of this Colony, We Conceive ourselves Reduced to the Necessity of Establishing A Form of Government to Continue During the Present Unhappy and Unnatural Contest with Great Britain; Protesting & Declaring that we Never Sought to throw off our Dependance upon Great Britain, but felt ourselves happy under her Protection, while we Could Enjoy our Constitutional Rights & Priviledges.—And that we Shall Rejoice if Such a Reconciliation between us and our Parent State can be Effected as Shall be Approved by the Continental Congress in whose Prudence and Wisdom we Confide: Accordingly Pursuant to the Trust reposed in us, We do Resolve That This Congress, Assume the Name, Power & Authority of a house of Representatives or Assembly for the Colony of New Hampshire. And that Said House then


225

Proceed to Choose Twelve Persons, being Reputable Freeholders and Inhabitants within this Colony, in the Following manner viz, Five in the County of Rockingham, Two in the County of Strafford, Two in the County of Hillsborough, Two in the County of Cheshire, and one in the County of Grafton, To be a Distinct & Separate branch of the Legislature, by the Name of A Council for this Colony, to Continue as Such untill [the Third Wednesday in December next; any Seven of whom to be a Quorum to do Business. That Such Council Appoint their President; and in his Absence that the Senior Councellor Preside. That a Secretary to Appointed by both Branches, who may be a Councellor, or otherwise as they Shall Choose. That no Act or resolve Shall be Valid & put into Execution unless agreed to and passed by both Branches of the Legislature. That all Publick Officers for the Said Colony, and Each County, for the Current Year, be Appointed by the Council & Assembly, Except the Several Clerks of the Executive Courts, who Shall be Appointed by the Justices of the respective Courts— That All Bills, Resolves or Votes for Raising Levying & Collecting money Originate in the House of Representatives. That at any Session of the Council and Assembly, Neither Branch Shall Adjourn for any Longer time than from Saturday till the Next Monday—without Consent of the other. And it is further Resolved, That if the Present unhappy Dispute with Great Britain Should Continue longer than this present year, & the Continental Congress Give no Instruction or Direction to the Contrary, the Council be Chosen by the People of Each respective County in Such manner as the Council & house of Representatives shall order— That General & field officers of the Militia, on any Vacancy, be Appointed by the Two houses & all Inferior Officers be Chosen by the Respective Companys.— That all officers of the Army be Appointed by the Two houses, Except they Should Direct otherwise in Case of any Emergency— That all Civil officers for the Colony & for Each County be Appointed, & the time of their Continuance in Office, be Determined by the Two houses, Except Clerks of Court, & County Treasurers & recorders of Deeds.— That a Treasurer and a recorder of Deeds for Each County be Annually Chosen by the People of Each County Respectively: The Votes for Such officers to be returned to the respective Courts of General Sessions of the Peace in the County, there to be ascertained as the Council & Assembly Shall hereafter Direct.— That Precepts in the name of the Council & Assembly, Signed by the President of the Council & Speaker of the House of Representatives, Shall Issue Annually at or before the first day of November, for the Choice of A Council and house of Representatives to be returned by the third Wednesday in

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December then next Ensuing, in Such manner as the Council & Assembly Shall hereafter Prescribe.—

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Tables and Appendices Appendix 2: Text of 1784 Constitution

This is the text of the 1784 constitution, as printed at Portsmouth, New Hampshire, in 1783. The version included in this appendix retains the use of capitalizations and spellings in the printing, except for the printer's convention of capitalizing all the letters of the first word of each paragraph: A CONSTITUTION CONTAINING A BILL OF RIGHTS, AND FORM OF GOVERNMENT, Agreed upon by the DELEGATES of the PEOPLE of the State of NEWHAMPSHIRE, in CONVENTION, held at CONCORD, on the first Tuesday of June, 1783; submitted to, and approved of by the people of said State; and established by their Delegates in Convention, October 31, 1783. PART I. THE BILL OF RIGHTS. Article I. All Men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good. II. All men have certain natural, essential, and inherent rights; among which are—the enjoying and defending life and liberty—acquiring, possessing and protecting property—and in a word, of seeking and obtaining happiness. III. When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others; and, without such an equivalent, the surrender is void. IV. Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the RIGHTS OF CONSCIENCE. V. Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments or persuasion; provided he doth not disturb the public peace, or disturb others in their religious worship.

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VI. As morality and piety, rightly grounded on evangelical principles, will give the best and greatest security to government, and will lay in the hearts of men the strongest obligations to due subjection; and as the knowledge of these, is most likely to be propagated through a society by the institution of the public worship of the DEITY, and of public instruction in morality and religion; therefore, to promote those important purposes, the people of this State have a right to impower, and do hereby fully impower the Legislature to authorize from time to time, the several towns, parishes, bodies-corporate, or religious societies within this State, to make adequate provision at their own expense, for the support and maintenance of public protestant teachers of piety, religion and morality: Provided notwithstanding, That the several towns, parishes, bodiescorporate, or religious societies, shall at all times have the exclusive right of electing their own public teachers, and of contracting with them for their support and maintenance. And no person of any one particular religious sect or denomination, shall ever be compelled to pay towards the support of the teacher or teachers of another persuasion, sect or denomination. And every denomination of Christians, demeaning themselves quietly, and as good subjects of the State, shall be equally under the protection of the law: And no subordination of any one sect or denomination to another, shall ever be established by law. And nothing herein shall be understood to affect any former contracts made for the support of the ministry; but all such contracts shall remain, and be in the same state as if this Constitution had not been made. VII. The people of this State, have the sole and exclusive right of governing themselves as a free, sovereign and independent State, and do, and forever hereafter shall, exercise, and enjoy every power, jurisdiction and right pertaining thereto, which is not, or may not hereafter be by them expressly delegated to the United States of America in Congress assembled. VIII. All power residing originally in, and being derived from the people, all the magistrates and officers of government, are their substitutes and agents, and at all times accountable to them. IX. No office or place whatsoever in government, shall be hereditary—the abilities and integrity requisite in all, not being transmissible to posterity or relations.

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Tables and Appendices X.

Government being instituted for the common benefit, protection, and security of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought, to reform the old, or establish a new government. The doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind. XL All elections ought to be free, and every inhabitant of the State having the proper qualifications, has equal right to elect, and be elected into office. XII. Every member of the community has a right to be protected by it in the enjoyment of his life, liberty and property; he is therefore bound to contribute his share in the expence [sic] of such protection, and to yield his personal service when necessary, or an equivalent. But no part of a man's property shall be taken from him, or applied to public uses, without his own consent, or that of the Representative body of the people. Nor are the inhabitants of this State controllable by any other laws than those to which they or their Representative Body have given their consent. XIII. No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent. XIV. Every subject of this State is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property or character, to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay, conformably to the laws. XV. No subject shall be held to answer for any crime, or offence [sic], until the same is fully and plainly, substantially and formally described to him; or be compelled to accuse or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defence [sic] by himself, and counsel. And no subject shall be arrested, imprisoned, despoiled, or deprived of this property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.

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Tables and Appendices XVI.

No subject shall be liable to be tried, after an acquittal, for the same crime or offence [sic].—Nor shall the Legislature make any law that shall subject any person to a capital punishment, excepting for the government of the army and navy, and the militia in actual service, without trial by jury. XVII. In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence [sic] ought to be tried in any other county than that in which it is committed; except in cases of general insurrection in any particular county, when it shall appear to the Judges of the Superior Court, that an impartial trial cannot be had in the county where the offence [sic] may be committed, and upon their report, the assembly shall think proper to direct the trial in the nearest county in which an impartial trial can be obtained. XVIII. All penalties ought to be proportioned to the nature of the offence [sic]. No wise Legislature will affix the same punishment to the crimes of theft, forgery and the like, which they do to those of murder and treason; where the same undistinguishing severity is exerted against all offences [sic]', the people are led to forget the real distinction in the crimes themselves; and to commit the most flagrant with as little compunction as they do those of the lightest dye. For the same reason a multitude of sanguinary laws is both impolitic and unjust. The true design of all punishments being to reform, not to exterminate, mankind. XIX. Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath, or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws. XX.

In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practised [sic], the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless in causes arising on the high seas, and such as relate to mariners wages, the Legislature shall think it necessary hereafter to alter it.


231 XXI.

In order to reap the fullest advantage of the inestimable priviledge [sic] of the trial by Jury, great care ought to be taken that none but qualified persons should be appointed to serve; and such ought to be fully compensated for their travel, time and attendance. XXII. The Liberty of the Press is essential to the security of freedom in a State; it ought therefore to be inviolably preserved. XXIII. Retrospective laws are highly injurious, oppressive and unjust. No such laws therefore should be made, either for the decision of civil causes, or the punishment of offences [sic]. XXIV. A well regulated militia is the proper, natural, and sure defence [sic] of a State. XXV. Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature. XXVI. In all cases, and at all times, the military ought to be under strict subordination to, and governed by the civil power. XXVII. No soldier in time of peace shall be quartered in any house without the consent of the owner, and in time of war such quarters ought not to be made but by the civil magistrate, in a manner ordained by the Legislature. XXVIII. No subsidy, charge, tax, impost or duty shall be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people or their Representatives in the Legislature, or authority derived from that body. XXIX. The power of suspending the laws, or the execution of them, ought never to be exercised but by the Legislature, or by authority derived therefrom, to be exercised in such particular cases only as the Legislature shall expressly provide for.

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Tables and Appendices XXX.

The freedom of deliberation, speech, and debate, in either House of the Legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution, in any other Court or place whatsoever. XXXI. The Legislature ought frequently to assemble for the redress of grievances, for correcting, strengthening and confirming the laws, and for making new ones, as the common good may require. XXXII. The people have a right in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their Representatives; and to request of the Legislative-body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer. XXXIII. No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments. XXXIV. No person can in any case be subjected to law-martial, or to any pains, or penalties, by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the Legislature. XXXV. It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit. It is therefore not only the best policy but for the security of the rights of the people, that the Judges of the Supreme (or Superior) Judicial Court should hold their offices so long as they behave well; and that they should have honorable salaries, ascertained and established by standing laws. XXXVI. Oeconomy [sic] being a most essential virtue in all States, especially in a young one, no pension shall be granted, but in consideration of actual services, and such pensions ought to be granted with great caution, by the Legislature, and never for more than one year at a time. XXXVII. In the government of this State, the three essential powers thereof, to wit, the Legislative, Executive and Judicial, ought to be kept as seperate [sic] from and

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independent of each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity. XXXVIII. A frequent recurrence to the fundamental principles of the Constitution, and constant adherence to justice, moderation, temperance, industry, frugality, and all the social virtues, are indispensably necessary to preserve the blessings of liberty and good government; the people ought therefore, to have a particular regard to all those principles in the choice of their Officers and Representatives: And they have a right to require of their law-givers and magistrates, an exact and constant observance of them in the formation and execution of the laws necessary for the good administration of government. PART II THE FORM OF GOVERNMENT The People inhabiting the Territory formerly called the Province of NewHampshire, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign, and independent Body-Politic or State, by the name of the STATE of NEW-HAMPSHIRE. THE GENERAL COURT The Supreme Legislative power within this State shall be vested in the Senate and House of Representatives, each of which shall have a negetive [sic] on the other. The Senate and House shall assemble every year on the first Wednesday of June, and at such other times as they may judge necessary; and shall dissolve, and be dissolved, seven days next preceding the said first Wednesday of June; and shall be stiled [sic] THE GENERAL COURT OF NEW-HAMPSHIRE. The General Court shall forever have full power and authority to erect and constitute judicatories and courts of record, or other courts, to be holden in the name of the State, for the hearing, trying, and determining all manner of crimes, offences [sic], 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. To which courts and judicatories are hereby given and granted full power and authority, from time to time to administer oaths or affirmations, for the better discovery of truth in any matter in controversy, or depending before them. And, farther, full power and authority are hereby given and granted to the said General-Court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant, or

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contrary to this Constitution, as they may judge for the benefit and welfare of this State, and for the governing and ordering thereof, and of the subjects of the same, for the necessary support and defence [sic] of the government thereof; and to name and settle annually, or provide by fixed laws, for the naming and settling all civil officers within this State, such officers excepted, the election and appointment of whom, are hereafter in this Form of Government otherwise provided for; and to set forth the several duties, powers and limits, of the several civil and military officers of this State, and the forms of such oaths or affirmations, as shall be respectively administred [sic] unto them, for the execution of their several offices and places, so as the same be not repugnant or contrary to this Constitution; and also to impose fines, mulcts, imprisonments, and other punishments; and to impose and levy proportional and reasonable assessments, rates and taxes, upon all the inhabitants of, and residents within the said State; and upon all estates within the same; to be issued and disposed of by warrant under the hand of the President of this State for the time being, with the advice and consent of the Council, for the public service, in the necessary defence [sic] and support of the Government of this State, and the protection and preservation of the subjects thereof, according to such acts as are, or shall be in force within the same. And while the public charges of government or any part thereof, shall be assessed on polls and estates in the manner that has heretofore been practised [sic]; in order that such assessments may be made with equality, there shall be a valuation of the estates within the State taken anew once in every five years at least, and as much oftener as the General Court shall order. SENATE There shall be annually elected by the freeholders and other inhabitants of this State, qualified as in this Constitution is provided, twelve persons to be Senators for the year ensuing their election; to be chosen in and by the inhabitants of the districts, into which this State may from time to time be divided by the General Court, for that purpose: And the General-Court in assigning the number to be elected by the respective districts, shall govern themselves by the proportion of public taxes paid by the said districts; and timely make known to the inhabitants of the State, the limits of each district, and the number of Senators to be elected therein; provided the number of such districts shall never be more than ten, nor less than five. And the several counties in this State, shall until the General Court shall order otherwise, be districts for the election of Senators, and shall elect the following number, viz. Rockingham, five. Strafford, two. Hillsborough, two. Cheshire, two. Grafton, one.


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The Senate shall be the first branch of the Legislature: And the Senators shall be chosen in the following manner, viz. Every male inhabitant of each town and parish with town privileges in the several counties in this State, of twenty-one years of age and upwards, paying for himself a poll tax, shall have a right at the annual or other meetings of the inhabitants of said towns and parishes, to be duly warned and holden annually forever in the month of March; to vote in the town or parish wherein he dwells, for the Senators in the county or district whereof he is a member. And every person qualified as the Constitution provides, shall be considered an inhabitant for the purpose of electing and being elected into any office or place within this State, in that town, parish and plantation where he dwelleth and hath his home. The Selectmen of the several towns and parishes aforesaid, shall, during the choice of Senators, preside at such meetings impartially, and shall receive the votes of all the inhabitants of such towns and parishes present and qualified to vote for Senators, and shall sort and count the same in the meeting, and in presence of the Town-Clerk, who shall make a fair record in presence of the Selectmen, and in open meeting, of the name of every person voted for, and the number of votes against his name; and a fair copy of this record shall be attested by the Selectmen and Town-Clerk, and shall be sealed up and directed to the Secretary of the State, with a superscription expressing the purport thereof, and delivered by said Clerk to the Sheriff of the county in which such town or parish lies, thirty days at least, before the first Wednesday of June; and the sheriff of each county, or his deputy, shall deliver all such certificates by him received, into the Secretary's office, seventeen days at least, before the first Wednesday of June. And the inhabitants of plantations and places unincorporated, qualified as this Constitution provides, who are or shall be required to assess taxes upon themselves towards the support of government, or shall be taxed therefor, shall have the same privilege of voting for Senators in the plantations and places wherein they reside, as the inhabitants of the respective towns and parishes aforesaid have. And the meetings of such plantations and places for that purpose, shall be holden annually in the month of March, at such places respectively therein, as the assessors thereof shall direct; which assessors shall have like authority for notifying the electors, collecting and returning the votes, as the Selectmen and Town Clerks have in their several towns by this Constitution. And, that there may be a due meeting of Senators on the first Wednesday of June, annually, the President and three of the Council for the time being, shall as soon as may, examine the returned copies of such records; and fourteen days before the said first Wednesday of June, he shall issue his summons to such persons as appear to be chosen Senators by a majority of votes, to attend and take their seats on that day: Provided, nevertheless, that for the first year the said returned copies shall be examined by the President and five of the Council of the

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former Constitution of Government; and the said President shall in like manner notify the persons elected, to attend and take their seats accordingly. The Senate shall be final judges of the elections, returns, and qualifications of their own members, as pointed out in this Constitution, and shall on the said first Wednesday of June annually, determine and declare, who are elected by each district to be Senators by a majority of votes: And in case there shall not appear to be the full number returned elected by a majority of votes for any district, the deficiency shall be supplied in the following manner, viz. The members of the House of Representatives and such Senators as shall be declared elected, shall take the names of such persons as shall be found to have the highest number of votes in each district, and not elected, amounting to twice the number of Senators wanting, if there be so many voted for; and out of these shall elect by joint ballot the number of Senators wanted for such district: And in this manner all such vacancies shall be filled up in every district of the State, and in like manner all vacancies in the Senate, arising by death, removal out of the State, or otherwise, shall be supplied as soon as may be after such vacancies happen. Provided nevertheless, That no person shall be capable of being elected a Senator, who is not of the Protestant Religion, and seized of a freehold estate in his own right of the value of two hundred pounds, lying within this State, who is not of the age of thirty years, and who shall not have been an inhabitant of this State for seven years immediately preceding his election; and at the time thereof he shall be an inhabitant of the district for which he shall be chosen. The Senate shall have power to adjourn themselves, provided such adjournment do [sic] not exceed two days at a time. The Senate shall appoint their own officers, and determine their own rules of proceedings. And not less than seven members of the Senate shall make a quorum for doing business; and when less than eight Senators shall be present, the assent of five at least shall be necessary to render their acts and proceedings valid. The Senate shall be a Court with full power and authority to hear and determine all impeachments made by the House of Representatives, against any officer or officers of the State, for misconduct or mal-administration in their offices. But previous to the trial of any such impeachment, the members of the Senate shall respectively be sworn, truly and impartially to try and determine the charge in question according to evidence. Their judgment, however, shall not extend farther than removal from office, disqualification to hold or enjoy any place of honor, trust or profit under this State; but the party so convicted, shall nevertheless be liable to indictment, trial, judgment, and punishment, according to laws of the land. HOUSE OF REPRESENTATIVES There shall be in the Legislature of this State a representation of the people annually elected and founded upon principles of equality: And in order that such representation may be as equal as circumstances will admit, every town, parish,


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or place intitled [sic] to town privileges, having one hundred and fifty rateable male polls, of twenty-one years of age, and upwards, may elect one Representative; if four hundred and fifty rateable polls, may elect two Representatives; and so proceeding in that proportion, making three hundred such rateable polls the mean increasing number, for every additional Representative. Such towns, parishes or places as have less than one hundred and fifty rateable polls shall be classed by the General Assembly for the purpose of chusing [sic] a Representative, and seasonably notified thereof. And in every class formed for the above-mentioned purpose, the first annual meeting shall be held in the town, parish, or place wherein most of the rateable polls reside; and afterwards in that which has the next highest number, and so on annually by rotation, through the several towns, parishes or places, forming the district. Whenever any town, parish, or place intitled [sic] to town privileges as aforesaid, shall not have one hundred and fifty rateable polls, and be so situated as to render the classing thereof with any other town, parish, or place very inconvenient, the General Assembly may upon application of a majority of the voters in such town, parish, or place, issue a writ for their electing and sending a Representative to the General-Court. The members of the House of Representatives shall be chosen annually in the month of March, and shall be the second branch of the Legislature. All persons qualified to vote in the election of Senators shall be intitled [sic] to vote within the town, district, parish, or place where they dwell, in the choice of Representatives. Every member of the House of Representatives shall be chosen by ballot; and for two years at least next preceding his election, shall have been an inhabitant of this State, shall have an estate within the town, parish, or place which he may be chosen to represent, of the value of one hundred pounds, one half of which to be a freehold, at the time of his election, an inhabitant of the town, parish, or place he may be chosen to represent; shall be of the Protestant Religion, and shall cease to represent such town, parish, or place immediately on his ceasing to be qualified as aforesaid. The travel of each Representative to the General-Assembly, and returning home, once in every session, and no more, shall be at the expence [sic] of the State, and the wages for his attendance, at the expence [sic] of the town, parish, or places he represents; such members attending seasonably, and not departing without licence [sic]. All intermediate vacancies in the House of Representatives, may be filled up from time to time, in the same manner as annual elections are made. The House of Representatives shall be the grand inquest of the state, and all impeachments made by them, shall be heard and tried by the Senate. All money bills shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills. A majority of the members of the House of Representatives shall be a quorum for doing business: but when less than two thirds of the Representatives

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elected shall be present, the assent of two thirds of those members shall be necessary to render their acts and proceedings valid. No member of the House of Representatives or Senate, shall be arrested, or held to bail on mean process, during his going to, returning from, or attendance upon the court. The House of Representatives shall choose their own speaker, appoint their own officers, and settle the rules of proceedings in their own house. They shall have authority to punish by imprisonment, every person who shall be guilty of disrespect to the house in its presence, by any disorderly and contemptuous behavior, or by threatening, or ill treating any of its members; or by obstructing its deliberations; every person guilty of a breach of its privileges in making arrests for debt, or by assaulting any member during his attendance at any session; in assaulting or disturbing any one of its officers in the execution of any order or procedure of the house, in assaulting any witness, or other person, ordered to attend by and during his attendance of the house, or in rescuing any person arrested by order of the house, knowing them to be such. The Senate, President and Council, shall have the same powers in like cases; provided that no imprisonment by either, for any offence [sic], exceed ten days. The journals of the proceedings of both houses of the General-Court, shall be printed and published, immediately after every adjournment, or prorogation; and upon motion made by any one member, the yeas and nays upon any question, shall be taken and entered in the journals. EXECUTIVE POWER. PRESIDENT. There shall be a Supreme Executive Magistate [sic], who shall be stiled [sic], The PRESIDENT of the STATE of NEW-HAMPSHIRE; and whose TITLE shall be his EXCELLENCY. The PRESIDENT shall be chosen annually; and no person shall be eligible to this office, unless at the time of his election, he shall have been an inhabitant of this State for seven years next preceding, and unless he shall be of the age of thirty years; and unless he shall, at the same time, have an estate of the value of five hundred pounds, one half of which shall consist of a freehold, in his own right, within the State; and unless he shall be of the protestant religion. Those persons qualified to vote for Senators and Representatives, shall within the several towns, parishes or places, where they dwell, at a meeting to be called for that purpose, some day in the month of March annually, give in their votes for a President to the Selectmen, who shall preside at such meeting, and the Clerk in the presence and with the assistance of the Selectmen, shall in open meeting sort and count the votes, and form a list of the persons voted for, with the number of votes for each person against his name, and shall make a fair record of the same in the town books, and a public declaration thereof in the said meeting; and shall in the presence of said inhabitants, seal up a copy of said list attested by him and the Selectmen, and transmit the same to the Sheriff of the county, thirty days at least before the first Wednesday of June, or shall cause


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returns of the same to be made to the office of the Secretary of the State, seventeen days at least before said day, who shall lay the same before the Senate and House of Representatives on the first Wednesday of June, to be by them examined: And in case of an election by a majority of votes through the State, the choice shall be by them declared, and published; but if no person shall have a majority of votes, the House of Representatives shall by ballot elect two out of four persons who had the highest number of votes, if so many shall have been voted for; but if otherwise, out of the number voted for; and make return to the Senate of the two persons so elected, on which the Senate shall proceed by ballot to elect one of them who shall be declared President. The President of the state shall preside in the Senate, shall have a vote equal with any other member; and shall also have a casting vote in case of a tie. The President with advice of Council, shall have full power and authority in the recess of the General-Court, to prorogue the same from time to time, not exceeding ninety days in any one recess of said Court; and during the session of said Court, to adjourn or prorogue it to any time the two houses may desire, and to call it together sooner than the time to which it may be adjourned, or prorogued, if the welfare of the State should require the same. In cases of disagreement between the two Houses, with regard to the time of adjournment, or prorogation, the President, with advice of Council, shall have a right to adjourn or prorogue the General-Court, not exceeding ninety days, at any one time, as he may determine the public good may require. And he shall dissolve the same seven days before the said first Wednesday of June. And in case of any infectious distemper prevailing in the place where the said Court at any time is to convene, or any other cause whereby dangers may arise to the healths or lives, of the members from their attendance, the President may direct the session to be holden at some other the most convenient place within the State. The President of this State for the time being, shall be commander in chief of the army and navy, and all the military forces of the State, by sea and land; and shall have full power by himself, or by any chief commander, or other officer, or officers, from time to time, to train, instruct, exercise and govern the militia and navy; and for the special defence [sic] and safety of this State, to assemble in martial array, and put in warlike posture, the inhabitants thereof, and to lead and conduct them, and with them to encounter, expulse, repel, resist and pursue by force of arms, as well by sea as by land, within and without the limits of the State; and also to kill, slay, destroy, if necessary, and conquer by all fitting ways, enterprize [sic] and means, all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or enterprize [sic] the destruction, invasion, detriment, or annoyance of this State; and to use and exercise over the army and navy, and over the militia in actual service, the lawmartial in time of war, invasion, and also in rebellion, declared by the Legislature to exist, as occasion shall necessarily require: And surprize [sic] by all ways and means whatsoever, all and every such person or persons, with their ships, arms, ammuition [sic], and other goods, as shall in a hostile manner

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invade, or attempt the invading, conquering, or annoying this State: And in fine, the President hereby is entrusted with all other powers incident to the office of Captain-General and Commander in Chief, and Admiral, to be exercised agreeably to the rules and regulations of the Constitution, and the laws of the land: provided that the President shall not at any time hereafter, by virtue of any power by this Constitution granted, or hereafter to be granted to him by the Legislature, transport any of the inhabitants of this State, or oblige them to march out of the limits of the same, without their free and voluntary consent, or the consent of the General-Court, nor grant commissions for exercising the lawmartial in any case, without the advice and consent of the Council. The power of pardoning offences [sic], except such as persons may be convicted of before the Senate by impeachment of the house, shall be in the President by and with the advice of the Council: But no charter of pardon granted by the President with advice of council, before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offence or offences [sic] intended to be pardoned. All Judicial officers, the Attorney-General[,] Solicitor-General, all Sheriffs, Coroners, Registers of Probate, and all officers of the navy, and General and field-officers of the militia, shall be nominated and appointed by the President and Council; and every such nomination shall be made at least seven days prior to such appointment, and no appointment shall take place, unless three of the Council agree thereto. The captains and subalterns in the respective regiments shall be nominated and recommended by the field officers to the President, who is to issue their commissions immediately on receipt of such recommendation. No officer, duly commissioned to command in the militia, shall be removed from his office, but by the address of both houses to the President, or by fair trial in court martial, pursuant to the laws of the State for the time being. The commanding officers of the regiments shall appoint their adjutants and quarter-masters; the brigadiers their brigade-majors; the major-generals their aids [sic]; the captains and subalterns their non-commissioned officers. The President and Council, shall appoint all officers of the Continental army, whom by the confederation of the United States it is provided that this State shall appoint, as also all officers of forts and garrisons. The division of the militia into brigades, regiments and companies, made in pursuance of the militia laws now in force, shall be considered as the proper division of the militia of this state, until the same shall be altered by some future law. No monies shall be issued out of the treasury of this state, and disposed of (except such sums as may be appropriated for the redemption of bills of credit or treasurers notes, or for the payment of interest arising thereon) but by warrant under the hand of the President for the time being, by and with the advice and consent of the Council, for the necessary support and defence [sic] of this State, and for the necessary protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the General-Court.

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All public boards, the commissary-general, all superintending officers of public magazines and stores, belonging to this State, and all commanding officers of forts and garrisons within the same, shall once in every three months, officially, and without requisition, and at other times, when required by the President, deliver to him an account of all goods, stores, provisions, ammunition, cannon, with their appendages, and small arms with their accoutrements, and of all other public property under their care respectively; distinguishing the quantity, and kind of each, as particularly as may be; together with the condition of such forts and garrisons: And the commanding officer shall exhibit to the President, when required by him, true and exact plans of such forts, and of the land and sea or harbor or harbors adjacent. The President and Council shall be compensated for their services from time to time by such grants as the General-Court shall think reasonable. Permanent and honorable salaries shall be established by law for the Justices of the Superior Court. Whenever the chair of the President shall be vacant, by reason of his death, absence from the State, or otherwise, the senior Senator for the time being shall, during such vacancy, have and exercise all the powers and authorities which by this Constitution the President is vested with when personally present. COUNCIL Annually on the first meeting of the General-Court, two members of the Senate and three from the House of Representatives, shall be chosen by joint ballot of both Houses as a Council, for advising the President in the Executive part of government, whom the President for the time being, shall have full power and authority to convene from time to time, at his discretion, and the President with the Counsellors, or three of them at least, shall and may from time to time hold and keep a Council, for ordering and directing the affairs of the State, according to the laws of the land. The qualifications for Counsellors, shall be the same as those required for Senators. The members of the Council shall not intermeddle with the making or trying impeachments, but shall themselves be impeachable by the House and triable by the Senate for mal-conduct. The resolutions and advice of the Council shall be recorded in a register, and signed by the members present, and this record may be called for at any time, by either house of the Legislature, and any member of the Council may enter his opinion contrary to the resolution of the majority. And whereas the elections appointed to be made by this Constitution on the first Wednesday of June annually, by the two houses of the Legislature, may not be completed on that day, the said elections may be adjourned from day to day until the same shall be completed. And the order of the elections shall be as follows; the vacancies in the Senate, if any, shall be first filled up; the President shall then be elected, provided there should be no choice of him by the people: And afterwards the two houses, shall proceed to the election of the Council.

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Tables and Appendices SECRETARY, TREASURER, COMMISSARY-GENERAL, &TC.

The Secretary, Treasurer, and Commissary-General, shall be chosen by joint ballot of the Senators and Representatives assembled in one room. The records of the State shall be kept in the office of the Secretary, who may appoint his deputies, for whose conduct he shall be answerable, and he shall attend the President and Council, the Senate and Representatives, in person, or by deputy, as they may require. COUNTY-TREASURER, &tc. The Country-Treasurers, and Registers of deeds shall be elected by the inhabitants of the several towns, in the several counties in the State, according to the method now practised [sic], and the present laws of the State: And before they enter upon the business of their offices, shall be respectively sworn faithfully to discharge the duties thereof and shall severally give bond with sufficient sureties, in a reasonable sum for the use of the county, for the punctual performance of their respective trusts. JUDICIARY POWER The tenure, that all commission [sic] officers shall have by law in their offices, shall be expressed in their respective commissions. All judical [sic] officers, duly appointed, commissioned and sworn, shall hold their offices during good behaviour, excepting those concerning whom there is a different provision made in this Constitution: Provided nevertheless, the President with consent of Council, may remove them upon the address of both houses of the Legislature. Each branch of the Legislature, as well as the President and Council, shall have authority to require the opinions of the justices of the Superior court upon important questions of law and upon solemn occasions. In order that the people may not suffer from the long continuance in place of any justice of the peace, who shall fail in discharging the important duties of his office with ability and fidelity, all commissions of justices of the peace shall become void, at the expiration of five years from their respective dates; and upon the expiration of any commission, the same may if necessary, be renewed, or another person appointed, as shall most conduce to the well-being of the State. The judges of probate of wills, and for granting letters of administration, shall hold their courts at such place or places, on such fixed days, as the convenience of the people may require. And the Legislature shall from time to time, hereafter appoint such times and places, until which appointments, the said Courts shall be holden at the times and places which the respective judges shall direct. All causes of marriage, divorce and alimony, and all appeals from the respective judges of probate, shall be heard and tried by the Superior-Court, until the Legislature shall, by law make other provision.

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Tables and Appendices CLERKS OF COURT

The Clerks of the Superior Court of Judicature, Inferior Courts of Common Pleas, and General Sessions of the Peace, shall be appointed by the respective courts during pleasure. And to prevent any fraud or unfairness in the entries and records of said Courts, no such Clerk shall be of counsel in any cause in the Court of which he is Clerk, nor shall he fill [sic] any writ in any civil action whatsoever. DELEGATES TO CONGRESS The Delegates of this State to the Congress of the United States, shall some time between the first Wednesday of June, and the first Wednesday of September annually, be elected by the Senate and House of Representatives in their seperate [sic] branches; to serve in Congress for one year, to commence on the first Monday in November then next ensuing. They shall have commissions under the hand of the President, and the great seal of the State; but may be recalled at any time within the year, and others chosen and commissioned, in the same manner, in their stead: And they shall have the same qualifications, in all respects, as by this Constitution are required for the President. No person shall be capable of being a delegate to Congress, for more than three years in any term of six years; nor shall any person being a delegate, be capable of holding any office under the United-States, for which he, or any other for his benefit, receives any salary, or emolument of any kind.

ENCOURAGEMENT of LITERATURE, &tc. Knowledge, and Learning, generally diffused through a community, being essential to the preservation of a free government, and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; it shall be the duty of the Legislators and magistrates, in all future periods of this government to cherish the interest of literature and the sciences, and all seminaries and public schools, to encourage private and public institutions, rewards and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affections, and generous sentiments, among the people. OATH and Subscriptions; Exclusion from Offices; Commissions; Writs; Confirmation of Laws; Habeas Corpus; the Enacting Stile; Continuance of Officers; Provision for a future Revision of the Constitution, &tc. Any person chosen President, Counsellor, Senator, or Representative, military or civil officer, (town officers excepted) accepting the trust, shall before he proceeds to execute the duties of his office, make and subscribe the following declaration, viz.

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/, A.B. do truly and sincerely acknowledge, profess, testify and declare, that the State of New-Hampshire is, and of right ought to be, a Free, sovereign and Independent State; and do swear that I will bear faith and true allegiance to the same, and that I will endeavor to defend it against all treacherous conspiracies and hostile attempts whatever: And I do further testify and declare, that no man or body of men, hath or can have, a right to absolve me from the obligation of this oath, declaration or affirmation; and that I do make this acknowledegment [sic], profession, testimony, and declaration, honestly and truly, according to the common acceptation of the foregoing words, without any equivocation, mental evasion, or secret reservation whatever. So help me GOD. I, A.B. do solemnly and sincerely swear and affirm, that I will faithfully and impartially discharge and perform all the duties incumbent on me as according to the best of my abilities, agreeably to the rules and regulations of this Constitution, and the laws of the State of New-Hampshire. So help me GOD. Provided always, When any person chosen or appointed as aforesaid, shall be of the denomination called Quakers, or shall be scrupulous of swearing, and shall decline taking the said oaths, such shall take and subscribe them, omitting the word "swear," and likewise the words "So help me God," subjoining instead thereof, This I do under the pains and penalties of perjury. And the oaths or affirmations shall be taken and subscribed by the President before the senior Senator present, in the presence of the two Houses of Assembly; and by the Senate and Representatives first elected under this Constitution, before the President and three of the Council of the former Constitution, and forever afterwards, before the President and Council for the time being; and by the residue of the officers aforesaid, before such persons, and in such manner as from time to time shall be prescribed by the Legislature. All commissions shall be in the name of the State of New-Hampshire, signed by the President, and attested by the Secretary, or his deputy, and shall have the great seal of the State affixed thereto. All writs issuing out of the Clerks' office in any of the Courts of law, shall be in the name of the State of New-Hampshire; shall be under the seal of the Court whence they issue, and bear test of the chief, first, or senior Justice of the Court; but when such Justice shall be interested, then the writ shall bear test of some other Justice of the court, to which the same shall be returnable; and be signed by the Clerk of such Court. All indictments, presentments and informations shall conclude against the peace and dignity of the State. The estates of such persons as may destroy their own lives, shall not for that offence [sic] be forfeited, but descend or ascend in the same manner, as if such persons had died in a natural way. Nor shall any article, which shall accidentally occasion the death of any person, be henceforth deemed a deodand, or in any wise forfeited on account of such misfortune. All the laws which have heretofore been adopted, used and approved, in the Province, Colony, or State of New-Hampshire, and usually practised [sic] on in


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the courts of law, shall remain and be in full force, until altered and repealed by the Legislature; such parts thereof only excepted, as are repugnant to the rights and liberties contained in this Constitution: Provided that nothing herein contained; when compared with the twenty-third article in the bill of rights, shall be construed to affect the laws already made respecting the persons, or estates of absentees. The privilege and benefit of the Habeas-Corpus, shall be enjoyed in this State, in the most free, easy, cheap, expeditious, and ample manner, and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a time not exceeding three months. The enacting stile [sic] in making and passing acts, statutes and laws, shall be—Be it enacted by the Senate and House of Representatives in General-Court convened. No President or Judge of the Superior-Court, shall hold any office or place under the authority of this State, except such as by this Constitution they are admitted to hold, saving that the Judges of the said Court may hold the offices of Justice of the Peace throughout the State; nor shall they hold any place or office, or receive any pension or salary, from any other State, Government, or Power whatever. No person shall be capable of exercising at the same time, more than one of the following offices within this State, viz. Judge of Probate, Sheriff, Register of Deeds; and never more than two offices of profit, which may be held by appointment of the President, or President and Council, or Senate and House of Representatives, or Superior or Inferior courts; Military offices, and offices of Justices of the Peace, excepted. No person holding the office of Judge of the Superior-Court, Secretary, Treasurer of the State, Judge of Probate, Attorney-General, CommissaryGeneral, Judge of the Maritime-Court, or Judge of the Court of Admiralty, Military officers receiving pay from the Continent or this State, excepting officers of the militia occasionally called forth on an emergency; Judge of the Inferior-Court of Common-Pleas, Register of Deeds, President, Professor or Instructor of any College, Sheriff, or Officer of the Customs, including NavalOfficers, shall at the same time have a seat in the Senate or House of Representatives, or Council; but their being chosen or appointed to, and accepting the same, shall operate as a resignation of their seat in the Senate, or House of Representatives, or Council; and the place so vacated shall be filled up. No person shall ever be admitted to hold a seat in the Legislature, or any office of trust or importance under this government, who in the due course of law, has been convicted of bribery or corruption, in obtaining an election or appointment. In all cases where sums of money are mentioned in this Constitution, the value thereof shall be computed in silver at six shillings and eight pence per ounce.

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To the end that there may be no failure of justice or danger arise [sic] to this State from a change of the form of Government, all civil and military officers, holding commissions under the Government and People of New-Hampshire, and other officers of the said Government and People, at the time this Constitution shall take effect, shall hold, exercise and enjoy all the powers and authorities to them granted and committed, until other persons shall be appointed in their stead. All Courts of law in the business of their respective departments, and the Executive, and Legislative bodies and persons, shall continue in full force, enjoyment and exercise of all their trusts and employments, until the GeneralCourt, and the Supreme and other Executive officers under this Constitution, are designated, and invested with their respective trusts, powers and authority. This form of Government shall be enrolled on parchment, and deposited in the Secretary's office, and be a part of the laws of the land, and printed copies thereof shall be prefixed to the books containing the laws of this State, in all future editions thereof. To preserve an effectual adherence to the principles of the Constitution, and to correct any violations thereof, as well as to make such alterations therein, as from experience may be found necessary, the General-Court shall at the expiration of seven years from the time this Constitution shall take effect, issue precepts, or direct them to be issued from the Secretary's office, to the several towns and incorporated places, to elect delegates to meet in Convention for the purposes aforesaid: The said delegates to be chosen in the same manner, and proportioned as the Representatives to the General-Assembly; provided that no alteration shall be made in this Constitution before the same shall be laid before the towns and unincorporated places, and approved by two thirds of the qualified voters present, and voting upon the question.

Bibliographical Essay

TEXTS OF THE CONSTITUTIONS The texts of the 1776 and 1784 constitutions are printed in Appendix 1 and Appendix 2, respectively. The text of the 1776 constitution in Appendix 1 is a transcription of the manuscript of the 1776 constitution in the Journal of the House of Representatives from January 5, 1776, located at the New Hampshire Department of State, Division of Records Management and Archives in Concord, New Hampshire. A printed text of the 1776 constitution may be found in the New Hampshire State Papers, Vol. VIII, pp. 2-4, which varies only in minor respects, mainly punctuation and capitalization, from the manuscript version in the journal. A broadside of the 1776 constitution from the New Hampshire Historical Society Broadside Collection is reproduced in The First State Constitution: Three Addresses Given at the Commemoration of the Adoption of New Hampshire's First State Constitution, January 5, 1776, Held at the New Hampshire State House, January 5, 1976 (Concord, NH: New Hampshire American Revolution Bicentennial Commission, 1977), pp. 4-5. The 1784 constitution in Appendix 2 is based on the earliest known printed version of the 1784 constitution, produced in Portsmouth, New Hampshire, in 1783. Unfortunately, there is no known manuscript version of the 1784 constitution, as it went into effect in 1784. The earliest known manuscript version of the 1784 constitution has incorporated into it the amendments ratified in 1792 and is located at the New Hampshire Department of State, Division of Records Management and Archives in Concord. Other printed versions of the 1784 constitution, which contain minor variations from the Portsmouth edition, may be found in New Hampshire State Papers, Vol. IX, pp. 896-918 and Colby's Manual of 1912, pp. 101-123. The text of the 1784 constitution, after the revision of 1792, is printed in New Hampshire State Papers, Vol. X, pp. 169-196. The constitution in its current form is readily available. The text is printed every year in the first volume of the New Hampshire Revised Statutes Annotated. The New Hampshire Secretary of State also periodically publishes a booklet containing a historical essay on the 1784 constitution and the current text of the constitution.

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JOURNALS OF FIFTH PROVINCIAL CONGRESS AND CONSTITUTIONAL CONVENTIONS The journal of the so-called fifth provincial congress is printed in the New Hampshire State Papers, Vol. VII, pp. 690-710. The congress resolved itself into the state's first house of representatives and drafted the state's first constitution in 1776. Journals for the conventions that first assembled in 1778 and 1781 have never been found. However, the constitutions proposed by these conventions are printed in Vol. IX of the New Hampshire State Papers as follows: the proposed constitution of 1779, pp. 837-842; the proposed constitution of 1781, pp. 852-877; and the proposed constitution of 1782, pp. 882-895. The journal of the 1791 convention is printed in New Hampshire State Papers, Vol. X, pp. 23-168. There is no published journal for the 1850 convention, although the original manuscript of the journal is available at the New Hampshire Department of State, Division of Records Management and Archives in Concord. The handwritten journal gives basic information regarding the acts of the convention, but goes into little detail. However, an excellent contemporary record of the 1850 convention exists in the reports of the New Hampshire Patriot and State Gazette. As reported in its edition of October 3, 1850, the newspaper employed "phonographic reporters" who were to give "verbatim reports" to be published in the edition of the next day. Starting on November 7, 1850, the newspaper faithfully recorded the actions of the 1850 convention, identifying each speaker and summarizing what was said. The journal of each convention, beginning in 1876, was published after the convention under the title Journal of the Convention to Revise the Constitution. SOURCES FOR NEW HAMPSHIRE HISTORY There are a number of excellent secondary sources for the early history of the colony and state of New Hampshire. Fewer sources exist for later historical periods. The following is a selection of historical sources. Belknap, Jeremy. History of New Hampshire. 3 vols. Philadelphia: T. Aitken, 1784, Boston: I. Thomas and E.T. Andrews, 1791, and Boston: Belknap and Young, 1792; republished New York: Johnson Reprint Corp., 1970. The only early history of New Hampshire written by a contemporary. Clark, Charles E. The Eastern Frontier: The Settlement of Northern New England 16101763. New York: Alfred A. Knopf, 1970. Primarily dealing with Massachusetts, New Hampshire, and Maine, this book is carefully researched and a useful source for New England's colonial period. Cole, Donald B. Jacksonian Democracy in New Hampshire, 1800-1851. Cambridge, MA: Harvard University Press, 1970. A good source for New Hampshire history in the first half of the nineteenth century, helpful in understanding the role of political forces leading up to constitutional changes in the later nineteenth century. Daniell, Jere R. Colonial New Hampshire: A History. Millwood, New York: KTO Press, 1981. The most important secondary resource for New Hampshire's colonial period. The book contains a very useful bibliographical essay on sources for colonial New Hampshire history. Daniell, Jere R. Experiment in Republicanism: New Hampshire Politics and the American Revolution, 1741-1794 (Cambridge, MA: Harvard University Press, 1970.


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A thoroughly researched and compelling account of the complex political scene in eighteenth-century New Hampshire. Heffernan, Nancy Coffey and Ann Page Stecker. New Hampshire: Crosscurrents in its Development (Hanover, N.H., 1996: University Press of New England. This book traces economic and political trends in the development of New Hampshire, from its beginnings up to the end of the twentieth century. Sanborn, Edwin D. History of New Hampshire, from Its First Discovery to the Year 1830. Manchester, NH: J. B. Clarke, 1875. Written by a Dartmouth College professor, this volume contains several useful chapters concerning the history of various religious denominations in New Hampshire and the 1819 Toleration Act. Stackpole, Everett S. History of New Hampshire. 4 vols. New York: The American Historical Society, 1916. A general history of New Hampshire up to about 1884. Turner, Lynn W. The Ninth State: New Hampshire's Formative Years. Chapel Hill: University of North Carolina Press, 1983. A highly readable account of the political and social development of postrevolutionary New Hampshire from about 1780 to 1820, including maps showing how New Hampshire towns voted on various key issues during that period. Upton, Richard Francis. Revolutionary New Hampshire: An Account of the Social and Political Forces Underlying the Transition from Royal Province to American Commonwealth. Hanover: Dartmouth College Publications, 1936; reprinted with a new introduction, New York: Octagon Books, 1971. This book, the result of the author's Senior Fellowship at Dartmouth College, is a careful study of the complex social and economic aspects of the Revolution in New Hampshire. The best printed source of primary sources for the early history of New Hampshire is a 40-volume compilation: Nathaniel Bouton, et al., eds. Documents and Records Relating to New Hampshire, 1623-1800 (Concord and Manchester: NH State Printer, 1867-1943), often referred to as the State Papers or Provincial Papers (in this publication, they will be referred to as the New Hampshire State Papers). Although somewhat difficult to use, these volumes are the best source for original materials for eighteenth-century New Hampshire. The titles of individual volumes vary. The collection includes the Provincial Papers in Vols. I-VII (1623-1776), XVIII (1725-1800, including both Provincial and State materials), and XIX; the State Papers (1776-1793) in Vols. VIII, IX (appendix at end of volume contains documents relating to state constitutional conventions held during the Revolutionary War), X, and XX-XXIII; and the Revolutionary Papers in Vols. XIVXVII (Revolutionary Rolls), and XXX (Revolutionary Rolls and miscellaneous documents). R. Stuart Wallace has written a descriptive guide to the papers in "The State Papers: A Descriptive Guide," Historical New Hampshire, XXXI (1976), pp. 119-128. CONSTITUTIONAL CONVENTIONS A number of secondary sources are available that focus on the constitutional conventions. Because a convention was the sole means of proposing amendments to the constitution until 1964, conventions have played an important role in New Hampshire constitutional history. The Colby Manual is especially useful, up to 1912. The summaries of constitutional amendment proposals published by the State Library in 1956 and 1984 are excellent reference sources. The three reports to conventions in 1964, 1974, and 1984 provide helpful background for the conventions.

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Buxton, Willis G. Four Constitutional Conventions and Congress. Concord: W. B. Ranney, 1928. Brief descriptions of early constitutional conventions, and more detailed information about constitutional conventions of 1889, 1902, 1912, and 1918. Clark, Allan Chester. "The Constitutional Convention," The Granite Monthly, January 1903, pp. 3-61. The last section of the article (pp. 14-61) is devoted to biographical sketches of selected convention delegates. Colby, James F. Manual of the Constitution of the State of New Hampshire, Compiled from Official Sources and Edited, with Sketch of the Constitutions of the State, the Basis of Representation, and Appendix. Concord: Evans Printing Co., 1902 and Manchester: J. B. Clarke, 1912. Prepared by a Dartmouth faculty member for the 1902 constitutional convention and updated for the convention of 1912, the Colby Manual contains a "sketch" of early state history and constitutional conventions and includes the texts of versions of early constitutions submitted for approval and descriptions of amendments proposed by constitutional conventions. Jeffries, Ruth, and Philip A. Hazelton. New Hampshire Constitutional Conventions. Concord: New Hampshire State Library Legislative Service, 1956. A New Hampshire State Library publication containing a brief constitutional history, a summary of all amendments proposed to the constitution from 1792 to 1948, and voting statistics. Millimet, Joseph A. "Thoughts on the 1964 Constitutional Convention," 6 New Hampshire Bar Journal p. 212 (April 1964). Report to the Fifteenth Constitutional Convention by the Commission to Study the State Constitution. Concord, 1964. This report is summarized in "A Modern Constitution for New Hampshire," 6 New Hampshire Bar Journal pp. 208-211 (April 1964). Report to the Sixteenth Constitutional Convention by the Commission to Study the State Constitution. Concord, 1974. Report to the Seventeenth Constitutional Convention by the Task Force to Study the State Constitution. Concord, 1984. Rinden, Constance T., and Jane Lyman. New Hampshire Constitutional Amendment Proposals. Concord: New Hampshire State Library, Law Division, 1984. This New Hampshire State Library publication revises and updates the Jeffries/Hazelton 1956 publication (see the previous entry) up to the amendments proposed in 1984. Upton, Richard Francis. "The Proposals to Amend the Constitution with Respect to the Judicial Department and the Power of Taxation," 6 New Hampshire Bar Journal p. 215 (April 1964). Upton, Robert William. Constitutional Aspects of Taxation, Address Delivered before the Sixth Institute of Public Affairs, at the University of New Hampshire, April 24, 1948. The address was prepared in anticipation of the 1948 constitutional convention, acknowledging that taxation would be an important subject of discussion at the convention. The eight-page address provides an intelligent review of the articles relating to the authority of the legislature under the New Hampshire Constitution to impose and levy taxes and key New Hampshire Supreme Court decisions interpreting those articles. Upton, Robert William. Remarks to the New Hampshire House printed in Journal of the New Hampshire House of Representatives, July 14, 1955, pp. 1152-1155. A short address by a former United States senator providing background for the 1956 convention, describing major concerns of previous New Hampshire constitutional conventions. Van Loan, Eugene M., III. "Amending the Constitution by Convention," 42 New Hampshire Bar Journal pp. 55-60 (June 2001).


251

HISTORY OF THE NEW HAMPSHIRE LEGISLATURE Anderson, Leon. To This Day. Canaan, NH: Phoenix Publishing, 1981. An anecdotal account of the history of the New Hampshire legislature through the eyes of a political journalist. New Hampshire Manual for the General Court, published every two years since 1889. Also known as the "Red Book," the Manual for the General Court contains general information about state government, including legislative membership, state officers, and records of state-wide votes. SECONDARY SOURCES; CONSTITUTIONAL HISTORY Most of the secondary sources relating to constitutional history concentrate on the period surrounding the adoption of the 1776 and 1784 constitutions. Andreson, Karen E. "A Return to Legitimacy: New Hampshire's Constitution of 1776," Historical New Hampshire, Vol. XXXI, No. 4 (Winter 1976), pp. 155-163. Bravenec, Lorence L. "The New Hampshire Bill of Rights in the Constitution of 1784 and the Treatment of Dissenters During the American Revolution," 8 New Hampshire Bar Journal pp. 244-272 (Summer 1966). Chase, William Martin, "A Review of Organic Law Development," Journal of the Convention to Revise the Constitution (Concord, 1903), pp. 208-222. A review of constitutional history presented by an Associate Justice of the New Hampshire Supreme Court, first delivered as an address in November 1902. Dodd, Walter F. "The Constitutional History of New Hampshire, 1775-1792," Proceedings of the Bar Association of the State of New Hampshire, n.s., 2 (19041908), pp. 379-400. Douglas, Charles G., Ill, "Judicial Review and the Separation of Powers under the New Hampshire Constitutions of 1776 and 1784," Historical New Hampshire, Vol. XXXI, No. 4 (Winter 1976), pp. 176-191. Downs, Deborah. "The New Hampshire Constitution of 1776: Weathervane of Conservatism," Historical New Hampshire, Vol. XXXI, No. 4 (Winter 1976), pp. 164175. Kenison, Frank R. "The Judiciary under the New Hampshire Constitution, 1776-1976," The First State Constitution: Three Addresses Given at the Commemoration of the Adoption of New Hampshire's First State Constitution, January 5, 1776, Held at the New Hampshire State House, January 5, 1976. Concord, NH: New Hampshire American Revolution Bicentennial Commission, 1977, pp. 12-2. Kinney, Charles B., Jr. Church and State; the Struggle for Separation in New Hampshire. New York: Columbia University, 1955. A study of the course of development of the relationship between church and state. Chapter IV discusses the attempts at constitutional revision of religious clauses of the New Hampshire Constitution. Lambert, Richard M. "The 4Ten Pound Act' Cases and the Origins of Judicial Review in New Hampshire," 43 New Hampshire Bar Journal pp. 37-54 (March 2002). Noyes, Richard. "Time Frame as a Variable in the Fifth Provincial Congress," Historical New Hampshire, Vol. XXXI, No. 4 (Winter 1976), pp. 192-216. Plumer, William, "The Constitution of New Hampshire," Proceedings of the Bar Association of the State of New Hampshire, n.s. 2 (1904-1908), pp. 207-244. A Discourse Delivered Before the New Hampshire Historical Society, June 16, 1853.

252


Rosal, Lorenca C, Eternal Vigilance: The Story of the New Hampshire Constitution. Orford, NH: Equity Publishing Corp., 1986. A textbook designed to teach basic constitutional history to Level III students. Upton, Richard Francis. "Notes from the New Hampshire Constitution—An Outline of Its Origin and Development, with References to Source Materials." New Hampshire Constitutional Law, A Continuing Legal Education Program, New Hampshire Bar Association, January 28, 1988, Concord, NH. Upton, Richard Francis, "The Constitution of 1776 from the Viewpoint of the Legislative Branch," The First State Constitution: Three Addresses Given at the Commemoration of the Adoption of New Hampshire's First State Constitution, January 5, 1776, Held at the New Hampshire State House, January 5, 1976. New Hampshire American Revolution Bicentennial Commission, 1977, pp. 23-29. Upton, Richard Francis, "The Independence of the Judiciary in New Hampshire," 1 New Hampshire Bar Journal pp. 28-39 (July 1959). Detailed information concerning legislative reconstruction of the courts in the nineteenth century and the constitutional status of the judicial branch before the amendments in 1966 constitutionally established the supreme and superior courts. Van Loan, Eugene M., Ill, "Ten Pound Act: An Introduction to Original Research on the Origins of Judicial Review," 43 New Hampshire Bar Journal pp. 34-36 (March 2002). CONSTITUTIONAL ISSUES The following is a selection of articles covering various constitutional issues: Douglas, Charles G., Ill, "The Gubernatorial Veto Power in New Hampshire." See 15 New Hampshire Bar Journal pp. 9-18 (October 1973). Douglas, Charles G., Ill, "The Unique Role of State Constitutions: Raising State Issues in New Hampshire," 28 New Hampshire Bar Journal pp. 309-325 (Summer 1987). Flagg, Jonathan M. "The Role of the Primacy Doctrine in New Hampshire Criminal Procedure: An Expansion of Individual Constitutional Rights," 28 New Hampshire Bar Journal pp. 357-371 (Summer 1987). Girard, Nancy L. "Sustainable Development and Transportation Choices: Why Article 6a of the New Hampshire Constitution Should Be Repealed," 42 New Hampshire Bar Journal pp. 14-19 (December 2001). Hesse, Richard, "The Legislature, the Court and the Constitution," 41 New Hampshire Bar Journal pp. 38-45 (March 2000). Jenkins, Martin R. "Property Rights under Constitutional Law," 28 New Hampshire Bar Journal pp. 373-390 (Summer 1987). Lynn, Robert J. "Judicial Rule-Making and the Separation of Powers in New Hampshire: The Need for Constitutional Reform," 42 New Hampshire Bar Journal pp. 44-69 (March 2001). McNamara, Richard B. "The Separation of Powers Principle and the Role of the Courts in New Hampshire," 42 New Hampshire Bar Journal pp. 66-87 (June 2001). Murphy, Walter L., and Martha Van Oot, "Please Be Careful With the Constitution: A Call for the Preservation of Judicial Independence," 42 New Hampshire Bar Journal pp. 11-15 (June 2001). Saunders, Arpiar G., Jr., "The New Hampshire Constitution and Individual Rights: 'Developed Advocacy' Required," 28 New Hampshire Bar Journal pp. 327-355 (Summer 1987).

Table of Cases

Aldrich v. Wright (1873) 53 N.H. 398, 39 American Automobile Association v. State (1992) 136 N.H. 579, 618 A.2d 844, 121, 127 Amyot v. Caron (1937) 88 N.H. 394, 190 A. 134, 114 Anderson v. McCann (1983) 124 N.H. 249, 469 A.2d 1311, 201 Angwin v. City of Manchester (1978) 118 N.H. 336, 386 A.2d 1272, 40 Appeal of Booker (1995) 139 N.H. 337, 653 A.2d 1084, 85 Appeal of Campaign for Ratepayers' Rights (1990) 133 N.H. 480, 577 A.2d 1230, 100 Appeal of Emissaries of the Divine Light (1995) 140 N.H. 552, 669 A.2d 802, 61 Appeal ofEno (1985) 126 N.H. 650, 495 A.2d 1277, 72 Appeal of Omni Communications, Inc. (1982) 122 N.H. 860, 451 A.2d 1289, 200 Appeal of Public Service Company (1996) 141 N.H. 13, 676 A.2d 101, 201 Appeal of Town of Bow (1990) 133 N.H. 194, 575 A.2d 1301, 121 Appeal of Trotzer (1998) 143 N.H. 64, 719 A2d 584719 A.2d 584, 45, 72 Ash v. Cummings (1872) 50 N.H. 591, 60 Asselin v. Town of Conway (1992) 135 N.H. 576, 607 A2d 132, 41-42 Asselin v. Town of Conway (1993) 137 N.H. 368, 628 A.2d 247, 60 Attorney General v. Bickford (1914) 77 N.H. 433, 92 A. 835, 148 Attorney General v. Morin (1943) 93 N.H. 40, 35 A.2d 513, 105 Attorney General v. Sands (1894) 68 N.H. 54, 44 A. 83, 154 Attorney General v. Taggert (1890) 66 N.H. 362, 29 A. 1027, 168 Baker v. Carr (1962) 369 U.S. 186, 32 Barker v. Wingo (1972) 407 U.S. 514, 64 Barker v. Young (1922) 80 N.H. 447, 119 A. 330, 149 Barney v. Leeds (1874) 54 N.H. 128, 105 Barry v King (1965) 106 N.H. 279,210 A.2d 161, 158 Bedell v. Bailey (1876) 58 N.H. 62, 196 Bednar v. King (1970) 110 N.H. 475, 272 A.2d 616, 143, 155, 213 Bell v. Pike (1873) 53 N.H. 473,151 Below v. Gardner (2002) 148 N.H. 1, 2002 NH LX 87 and 121, 56, 130, 147 Bezio v. Neville (1973) 113 N.H. 278, 305 A.2d 665, 145,155 Bingham v. Jewett (1891) 66 N.H. 382, 29 A. 694, 143, 151

254

Table of Cases

Bisson v. University of New Hampshire (1990) 133 N.H. 353, 578 A.2d 320,150 Blake v. State (1975) 115 N.H. 431, 343 A.2d 223, 186 Boodyv. Watson (1886) 64 N.H. 162, 9 A. 794, 117 Boston & Maine Railroad v. State (1910) 75 N.H. 513, 77 A. 996, 59 Boston, Concord and Montreal Railroad v. State (1880) 60 N.H. 87, 121 Boyer v. Gardner (D.N.H. 1982) 540 F.Supp. 624, 131 Bragg v. New Hampshire Director of Motor Vehicles (1997) 141 N.H. 677, 690 A2d 571, 71 Brewsterv. Hough (1839) 10 N.H. 138,91 Brown v. Lamprey (1965) 106 N.H. 121, 206 A.2d 493, 153-154 Brown v. Rye (1957) 101 N.H. 92, 133 A.2d 499, 123 Buckner v. Buckner (1980) 120 N.H. 402, 415 A.2d 871, 42 Burling v. Chandler (2002) 148 N.H. 143, 804 A.2d 471, 56,130-131,147 Burrows v. City of Keene (1981) 121 N.H. 590, 432 A.2d 15, 39,60 Buskey v. Town of Hanover (1990) 133 N.H. 318, 577 A.2d 406, 39, 41 Cagans, Inc. v. New Hampshire Department of Revenue Administration (1985) 126 N.H. 239, 490 A.2d 1354, 89 Carlisle v. Dodge (1831) 5 N.H. 386, 197 Carpenter v. Berry (1948) 95 N.H. 151, 59 A.2d 485, 204 Carson v. Maurer (1980) 120 N.H. 925, 424 A.2d 825, 40 Carter v. Craig (1914) 77 N.H. 200, 90 A. 598, 120 Chandler v. Bishop (1997) 142 N.H. 404, 702 A.2d 813, 48 Cheshire Medical Center v. Holbrook (1995) 140 N.H. 187, 663 A.2d 1344, 42 Chesterfield v. Brooks (1985) 126 N.H. 64; 489 A.2d 600, 41^2 Chimento v. Stark, 353 F. Supp. 1211 (D.N.H. 1973), affd, 414 U.S. 802 (1975), 160 Christy & Terrier v. Witte (1985) 126 N.H. 702, 495 A.2d 1291, 63 Chwalek v. Dover School Committee (1980) 120 N.H. 864, 424 A.2d 406, 116 City ofClaremont v. Craigue (1992) 135 N.H. 528, 608 A.2d 866, 54,108-109 City ofClaremont v. Truell (1985) 126 N.H. 30, 489 A.2d 581, 72 City of Dover v. Imperial Casualty & Indemnity Co. (1990) 133 N.H. 109, 575 A.2d 1280,41-42,62 Claremont School District v. Governor (1993) 138 N.H. 183, 635 A.2d 1375, 198 Claremont School District v. Governor (1997) 142 N.H. 462, 703 A.2d 1353, 91, 121, 124,199,203 Claremont School District v. Governor (1998) 142 N.H. 737, 712 A.2d612, 118, 194 Claremont School District v. Governor (1998) 143 N.H. 154, 725 A.2d 648, 202 Clark v. Clark (1839) 10 N.H. 380, 191 Clough v. Clough (1922) 80 N.H. 462, 119 A. 327, 191 Cohen v. Town of Henniker (1991) 134 N.H. 425, 593 A.2d 1145, 60 Coker v. Georgia (1977) 433 U.S. 584, 99 Cole v. Lake Company (1874) 54 N.H. 242, 206 Coleman v. School District of Rochester (1936) 87 N.H. 465, 183 A. 586, 120, 199 Concord Railroad v. Greely (1845) 17 N.H. 47, 60 Concrete, Inc. v. Rheaume Builders (1957) 101 N.H. 59, 132 A.2d 133, 83 Connecticut River Lumber Co. v. Olcott Falls Co. (1889) 65 N.H. 290, 21 A. 1090, 85 Conner v. State (1925) 82 N.H. 126, 130 A. 357, 125 Copp v. Henniker (1875) 55 N.H. 179, 15,30, 83-84 Corning Glass Works v. Max Dichter Co. (1960) 102 N.H. 505, 161 A.2d 569, 201 Cotter v. Wright (2000) 145 N.H. 568, 765 A.2d 684,186 Crowell v. Londonderry (1884) 63 N.H. 42, 60

Table of Cases

255

Currier v. Perley (1851) 24 N.H. 219, 206 Daley v. Kennett (1910) 75 N.H. 536, 78 A. 123, 83 Daniell v. Gregg (1952) 97 N.H. 452, 91 A.2d 461, 57 Dartmouth College v. Woodward{\U9) 17 U.S. 518, 214 Davis v. Mann, 311 U.S. 678 (1964), 32 Day v. New Hampshire Retirement System (1993) 138 N.H. 120, 635 A.2d 493, 104 Dederick v. Smith (1936) 88 N.H. 63, 184 A. 595, 60 Delancey v. Insurance Co. (1873) 52 N.H. 581, 53 Dennett v. Dennett (1862) 43 N.H. 499, 206 Dion v. Cheshire Mills (1943) 92 N.H. 414, 32 A.2d 605, 84 Doe v. State (1974) 114 N.H. 714, 328 A.2d 784, 88,173 Donnelly v. City of Manchester (1971) 111 N.H. 50, 274 A.2d 789, 40 Douglas v. Douglas (1999) 143 N.H. 419, 728 A.2d 215, 101,187 Dover News, Inc. v. City of Dover (1977) 117 N.H. 1066, 381 A.2d 752, 86 Dow v. Northern Railroad (1886) 67 N.H. 1, 36 A. 510, 108,114 Dresden School District v. Hanover School District (1964) 105 N.H. 286, 198 A.2d 656, 49 Duncan v. Louisiana (1968) 391 U.S. 145, 68 East Kingston v. Towle (1868) 48 N.H. 57, 120 Eaton v. Boston, Concord, & Montreal Railroad (1872) 51 N.H. 504, 60 Eldridge v. Eldridge (1993) 136 N.H. 611, 620 A.2d 1031, 89 Eltra Corp. v. Town ofHopkinton (1979) 119 N.H. 907, 409 A.2d 1145, 122 Estate of Cargill v. City of Rochester (1979) 119 N.H. 661, 406 A.2d 704, 51,62 Estate of Kennett v. State (1975) 115 N.H. 50, 333 A.2d 452, 89 Evans v. Foster (1819) 1 N.H. 374, 98 Eyers Woolen Co. v. Town ofGilsum (1929) 84 N.H. 1, 146 A. 51, 122-123 Farnum s Petition (1871) 51 N.H. 376, 199 Faulkner v. Keene (1931) 85 N.H. 147, 155 A. 195,188 Felder v. City of Portsmouth (1974) 114 N.H. 573, 324 A.2d 708, 122 Felker v. Henderson (1917) 78 N.H. 509, 102 A. 623, 150 Ferretti v. Jackson (1936) 88 N.H. 296, 188 A. 474, 115 First NH Bank v. Town of Windham (1994) 138 N.H. 319, 639 A.2d 1089, 72 Fischer v. Governor (2000) 145 N.H. 28, 749 A.2d 321, 57, 110 Fogg v. Board of Education of Littleton (1912) 76 N.H. 296, 82 A. 173, 199 Free v. Buckingham (1879) 59 N.H. 219, 44 Gelinas v. Mackey (1983) 123 N.H. 690, 465 A.2d 498, 89 Gerber v. King (1967) 107 N.H. 495, 225 A.2d 620, 116,141 Gibbs v. Helgemoe (1976) 116 N.H. 825, 367 A.2d 1041, 73 Gideon v. Wainright (1963) 372 U.S. 335, 74 Girard v. Town of Allenstown (1981) 121 N.H. 268, 428 A.2d 488, 93,108-109 Glover v. Baker (1912) 76 N.H. 393, 83 A. 916, 45,195 Goodnow v. Perrin (1980) 120 N.H. 669, 421 A.2d 1008, 99 Goodwin v. Milton (1852) 25 N.H. 458, 202 Gregg v. Georgia (1976) 428 U.S. 153, 99 Grinnell v. State (1981) 121 N.H. 823, 435 A.2d 523, 193 Guillou v. State Division of Motor Vehicles (1986) 127 N.H. 579, 503 A.2d 838, 115 Hale v. Everett (1868) 53 N.H. 9, 39,44, 47,136, 214 Harper v. Virginia State Board of Elections (1966) 383 U.S. 663, 150 Harriman v. City of Lebanon (1982) 122 N.H. 477, 446 A.2d 1158, 108 Havens v. Attorney General (1940) 91 N.H. 115, 14 A2d 636, 125

256

Table of Cases

Hayes v. Bennett (1822) 2 N.H. 422, 193 Heath v. Heath (1932) 85 N.H. 419, 159 A. 418, 191 Heath v. Seymour (1970) 110 N.H. 425, 270 A.2d 602, 195 Hodge v. Manchester (1920) 79 N.H. 437, 111 A. 385, 88 Hunt v. Personnel Commission (1975) 115 N.H. 713, 349 A.2d 605, 121 Hussey v. Davis (1878) 58 N.H. 317, 80 Hutchins v. Edson (1817) 1 N.H. 139, 71, 204 ICS Communications v. Fitch (2000) 145 N.H. 433, 764 A.2d 396, 84 In re Baby K (1998) 143 N.H. 201, 722 A.2d 470, 40 In re Barry (1998) 143 N.H. 161, 720 A.2d 977, 109 In re Caulk (1984) 125 N.H. 226, 480 A.2d 93, 43 In re Certain Scholarship Funds, (1990) 133 N.H. 227, 575 A.2d 1325, 39 In re City of Keene (1997) 141 N.H. 797, 693 A.2d 412, 101 In re Doe (1983) 123 N.H. 634, 465 A.2d 924, 40 In re Dumaine (1991) 135 N.H. 103, 600 A.2d 127, 39 In re Eduardo L. (1993) 136 N.H. 678, 621 A.2d 923, 69 In re Estate ofDionne (1986) 128 N.H. 682, 518 A.2d 178, 64 In re Estate ofMcQuesten (1990) 133 N.H. 420, 578 A.2d 335, 72 In re Estate ofO'Dwyer(\992) 135 N.H. 323, 605 A.2d 216, 196 In re Gamble (1978) 118 N.H. 771, 394 A.2d 308, 71-72 In re Jack O 'Lantern (1978) 118 N.H. 445, 387 A.2d 1166, 49 In re Judicial Conduct Commission (2000) 145 N.H. 108, 751 A.2d 514, 139,184 In re Kearsarge Regional School District (1994) 138 N.H. 211, 636 A.2d 1033, 38,41 In re Kevin E. (1999) 143 N.H. 417, 725 A.2d 669, 78 In re Mussman (1972) 112 N.H. 99, 289 A.2d 403, 100,157,185 In re Nicholas G (1997) 142 N.H. 38, 695 A.2d 220, 184 In re Petition of Brooks (1996) 140 N.H. 813, 678 A2d 140, 86 In re Petition of Ml Washington Road Co. (1857) 35 N.H. 134, 60 In re Petition of New Boston (1870) 49 N.H. 328, 101 In re Proposed N.H. Rules of Civil Procedure (1995) 139 N.H. 512, 659 A.2d 420, 186 In re Richard A. (2001) 146 N.H. 295, 771 A.2d 572, 72, 74 In re Sanborn (1988) 130 N.H. 430, 545 A.2d 726, 73 In re School-Law Manual (1885) 63 N.H. 574, 4 A. 878, 194, 207 In re Scott L. (1983) 124 N.H. 327, 469 A.2d 1336, 72, 74 In re Thayer (2000) 145 N.H. 177, 761 A.2d 1052, 102 In re Tocci (1997) 137 N.H. 131, 624 A.2d 548, 184 Johnson & Porter Realty Co. v. Commissioner of Revenue Administration (1982) 122 N.H. 696, 448 A.2d 435, 122 Jones v. Chase (1970) 110 N.H. 406, 270 A.2d 102, 84 Kaemmerling v. State (1924) 81 N.H. 405, 128 A. 6, 174 Karamanou v. H. V Greene Co. (1922) 80 N.H. 420, 124 A. 373, 117 Keefe v. Roberts (1976) 116 N.H. 195, 355 A.2d 824, 94, 142 Keene Publishing Corp. v. Cheshire County Superior Court (1979) 119 N.H. 710, 406 A.2dl37,68,87 Keene Publishing Corp. v. Keene District Court (1977) 117 N.H. 959, 380 A.2d 261, 68, 87 Keniston v. State (1884) 63 N.H. 37, 190, 194-195 Kennardv. Kennard (1925) 81 N.H. 509, 129 A. 725, 191 Kerouac v. Town ofHollis (1995) 139 N.H. 554, 660 A.2d 1080, 41 Key Bank v. Latshaw (1993) 137 N.H. 665, 633 A.2d 952, 66

Table of Cases

257

Kibbe v. Town of Milton (1997) 142 N.H. 288, 700 A.2d 1224, 56 King v. Sununu (1985) 126 N.H. 302, 490 A.2d 796, 93,128 King v Thomson (1976) 116 N.H. 838, 367 A.2d 1049, 100 Knight v. Hollings (1906) 73 N.H. 495, 63 A. 38, 195 Koskiv. Samaha(D.N.H. 1980)491 F. Supp. 432, reversed, 648 F.2d 790 (1st Cir. 1981), 193 Kulik v. Potter (1990) 133 N.H. 67, 572 A.2d 1157, 193 Lavoie v. Tufts (1964) 106 N.H. 13, 203 A.2d 596, 57 LeClair v. LeClair (1993) 137 N.H. 213, 624 A.2d 1350, 41 Levitt v. Attorney General (1962) 104 N.H. 100, 179 A.2d 286, 129 Lisbon Savings Bank & Trust Co. v. Estate ofMoulton (1941) 91 N.H. 477, 22 A.2d 331, 195 Locke v. Ladd(\919) 119 N.H. 136, 399 A.2d 962, 40 Lodge v. Knowlton (1978) 118 N.H. 574, 391 A.2d 893, 51 Longchamps Electric, Inc. v. New Hampshire State Apprenticeship Council (2000) 145 N.H. 502, 764 A2d 921, 39 Lorette v. Peter-Sam Investment Properties (1997) 142 N.H. 207, 697 A.2d 1386, 63 Lucas v. Gate (1954) 99 N.H. 134, 106 A.2d 200, 84

Lucas v. Forty-Fourth General Assembly of Colorado (1964) 377 U.S. 713, 32

Mack v. Jones (1850) 21 N.H. 393, 91 Malloy v. Hogan (1964), 378 U.S. 1, 66 Mapp v. Ohio (1961) 367 U.S. 643, 80 Martineau v. Helgemoe (1977) 117 N.H. 841, 379 A.2d 1040, 68-^9 Maryland Committee v. Tawes, (1964) 377 U.S. 656, 32 Mayo v. Wilson (1817) 1 N.H. 53, 43 McGovern v. Secretary of State (1993) 138 N.H. 128, 635 A.2d 498, 130, 132 Mclntire v. Borofsky (1948) 95 N.H. 174, 59 A.2d 471, 201 McLellan v. Cavanaugh (1985) 127 N.H. 33, 498 A.2d 735, 62, 64 Merrill v. City of Manchester (1985) 127 N.H. 234, 499 A.2d 216, 60 Merrill v. Sherburne (1818) 1 N.H. 199, 88,105,119 Metzger v. Town of Brentwood (1977) 117 N.H. 497, 374 A.2d 954, 60 Monier v. Gallen (1980) 120 N.H. 333, 414 A.2d 1297, 107 Monier v. Gallen (1982) 122 N.H. 474, 446 A.2d 454, 184 Monitor Publishing Co. v. Hill (1961) 103 N.H. 397, 173 A.2d 725, 138 Moses v. Julian (1863) 45 N.H. 52, 100-101, 194,196 Murphy & Sons v. Peters (1948) 95 N.H. 275, 62 A.2d 718, 84 Muzzy v. Wilkins (1803) Smith (N.H.) 1, 48 Nashua School District, v. State (1995) 140 N.H. 457, 667 A.2d 1036, 93 Nassif Realty Corp. v. National Fire Insurance Co. (1966) 107 N.H. 267, 220 A.2d 748, 84, 186 Nelson v. Wyman (1954) 99 N.H. 33, 105 A.2d 756, 53-54,99 New England Household Moving & Storage, Inc. v. Public Utilities Commission (1977) 117 N.H. 1038, 381 A.2d 745, 200 New Hampshire Municipal Trust Workers' Compensation Fund v. Flynn (1990) 133 N.H. 17,573 A.2d 439, 92-93 Newell v. New Hampshire Division of Welfare (1988) 131 N.H. 88, 550 A.2d 109, 165 Novosel v. Helgemoe (1978) 118 N.H. 115, 384 A.2d 124, 73 O'Neilv. Thomson (1974) 114 N.H. 155,316 A.2d 168, 159 Opinion of the Court (1816) 62 N.H. 704, 188 Opinion of the Court (1877) 58 N.H. 621, 152

258

Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion

Table of Cases of the Court (1879) 58 N.H. 623, 108 of the Court (1881) 60 N.H. 585, 189 of the Court (1885) 63 N.H. 625, 97,143 of the Justices (1829) 4 N.H. 565, 59, 114, 121 of the Justices (1835) 7 N.H. 599, 182-183 of the Justices (1835) 8 N.H. 573, 32 of the Justices (1852) 25 N.H. 537, 98 of the Justices (1857) 35 N.H. 579, 145,181 of the Justices (1859) 41 N.H. 550, 117 of the Justices (1863) 44 N.H. 633, 58 of the Justices (\ 864) 45 N.H. 607, 162-163 of the Justices (1873) 53 N.H. 640, 151 of the Justices (1875) 56 N.H. 570, 153 of the Justices (1875) 56 N.H. 574, 153 of the Justices (1877) 62 N.H. 706, 188 of the Justices (1889) 76 N.H. 612, 85 A. 781, 210 of the Justices (1892) 67 N.H. 600, 43 A. 1074, 189-190 of the Justices (1901) 70 N.H. 640, 50 A. 329, 189 of the Justices (1905) 73 N.H. 618, 60 A. 847, 120, 182 of the Justices (1907) 74 N.H. 606, 68 A. 873, 176 of the Justices (1910) 75 N.H. 624, 75 A. 99, 174 of the Justices (1911) 76 N.H. 586, 79 A. 29, 211, 213 of the Justices (1911) 76 N.H. 601, 81 A. 170, 163 of the Justices (1917) 78 N.H. 617, 100 A. 49, 103 of the Justices (1919) 79 N.H. 535, 112 A. 525, 178 of the Justices (1921) 80 N.H. 595, 113 A. 293, 58 of the Justices (1927) 82 N.H. 561, 138 A. 284, 125 of the Justices (1927) 83 N.H. 589, 139 A. 180, 55,150,190 of the Justices (\ 930) 84 N.H. 559, 149 A. 321, 125 of the Justices (1933) 86 N.H. 597, 166 A. 640, 53, 106, 117 of the Justices (1935) 87 N.H. 489, 177 A. 655, 156, 168 of the Justices (1937) 88 N.H. 484, 190 A. 425, 53, 119 of the Justices (1937) 88 N.H. 511, 192 A. 494, 103 of the Justices (1939) 90 N.H. 567, 6 A.2d 763, 189 of the Justices (1944) 93 N.H. 474, 37 A.2d 478, 32, 116,171, 189 of the Justices (\W)WN.\\. 501,51 A.2d 836, 127 of the Justices (1949) 95 N.H. 533, 64 A.2d 204, 137-138 of the Justices (1949) 95 N.H. 548, 65 A.2d 700, 121-123 of the Justices (1949) 95 N.H. 552, 65 A.2d 45, 138 of the Justices (1949) 95 N.H. 557, 66 A.2d 76, 190 of the Justices (\950) 96 N.H. 5 \7, 83 A.2d 738, 114, 162,164 of the Justices (1951) 97 N.H. 543, 81 A.2d 851, 126 of the Justices (1953) 98 N.H. 530, 98 A.2d 635, 177 of the Justices (\955) 99 N.H. 517, 113 A2d 119, 126 of the Justices (1955) 99 N.H. 519, 113 A.2d 114, 48, 200 of the Justices (1955) 99 N.H. 524, 113 A.2d 542, 190 of the Justices (1955) 99 N.H. 532, 114 A.2d 327, 119 of the Justices (1957) 101 N.H. 527, 132 A.2d 613, 127 of the Justices (1959) 102 N.H. 75, 150 A.2d 816, 103 of'the'Justices (1959) 102 N.H. 80, 150 A.2d 813, 139, 188

Table of Cases Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion Opinion

of the Justices of the Justices of the Justices of 'the Justices of'the Justices of 'the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices of the Justices

259

(1959) 102 N.H. 123, 151 A.2d 777, 103 (1959) 102 N.H. 183, 152 A.2d 870, 189 (1959) 102 N.H. 187, 152 A.2d 872, 190 (1959) 102 N.H. 189, 153 A.2d 407, 122 (1959) 102 N.H. 230, 153 A.2d 409, 145, 155 (1959) 102 N.H. 320, 156 A.2d 136, 143 (1961) 103 N.H. 281, 170 A.2d 125, 122 (1961) 103 N.H. 333, 171 A.2d 923, 210 (1961) 103 N.H. 402, 174 A.2d 420, 162-163 (1963) 105 N.H. 125, 193 A.2d 880, 130,189 (1965) 106 N.H. 202, 208 A.2d 458, 125 (1965) 106 N.H. 233, 209 A.2d 471, 131 (1965) 106 N.H. 402, 213 A.2d 415, 162-163,180 (1967) 108 N.H. 170, 230 A.2d 221, 127 (1969) 109 N.H. 366, 252 A.2d 429, 188 (1969) 109 N.H. 367, 253 A.2d 492, 110 (1969) 109 N.H. 396, 254 A.2d 273, 108-109, 127 (1969) 109 N.H. 473, 254 A.2d 845, 189 (1969) 109 N.H. 578, 258 A.2d 343, 200 (1970) 110 N.H. 359, 266 A.2d 823, 107,121 (1971) 111 N.H. 146, 276 A.2d 825, 132,134 (1971) 111 N.H. 175, 278 A.2d 475, 50-51, 143, 145 (1971) 111 N.H. 197, 279 A.2d 601, 213 (1971) 111 N.H. 206, 278 A.2d 348,125 (1972) 112 N.H. 42, 288 A.2d 697, 109 (1973) 113 N.H. 87, 302 A.2d 112, 176 (1973) 113 N.H. 141, 303 A.2d 752, 159 (1973) 113 N.H. 149, 304 A.2d 86, 211, 213 (1974) 114 N.H. 89, 315 A.2d 858, 165 (\974) 114 N.H. 711, 327 A.2d 713, 56, 213 (1975) 115 N.H. 44, 332 A.2d 165, 169 (Wl 5) 115 N.H. 159, 335 A.2d 642,121,165-166 (1975) 115 N.H. 228, 338 A.2d 553, 122 (1975) 115 N.H. 329, 340 A.2d 112, 189 (1975) 115 N.H. 686, 349 A.2d 593, 141,154,171 (1976) 116 N.H. 351, 358 A.2d 667, 139 (1976) 116 N.H. 358, 360 A.2d 889, 189 (1976) 116 N.H. 406, 360 A.2d 116, 106,158-159,178 (1977) 117N.H. 300, 371 A.2d 1189, 127 (1977) 117 N.H. 382, 373 A.2d 640, 98 (1977) 117 N.H. 386, 373 A.2d 644, 87 (1977) 117 N.H. 390, 373 A.2d 642, 190 (1977) 117 N.H. 398, 374 A.2d 638, 165 (1977) 117 N.H. 409, 373 A.2d 1323, 104 (1977) 117 N.H. 512, 374 A.2d 964, 122,125 (1977) 117 N.H. 533, 376 A.2d 118, 201 (1977) 117 N.H. 655, 377 A.2d 137, 127 (1977) 117 N.H. 749, 379 A.2d 782, 121 (1977) 117 N.H. 837, 379 A.2d 796, 162 (1978) 118 N.H. 7, 381 A.2d 1204, 49, 106

260

Table of Cases

Opinion ofthe Justices (1978) 118 N.H. 582, 392 A.2d 125, 49, 106, 159 Opinion ofthe Justices (1979) 119 N.H. 325, 401 A.2d 1084, 204 Opinion of the Justices (1981) 121 N.H. 280, 428 A.2d 909, 190 Opinion ofthe Justices (1981) 121 N.H. 434, 430 A.2d 191, 96 Opinion of the Justices (1981) 121 N.H. 529, 430 A.2d 1137, 96 Opinion of the Justices (1981) 121 N.H. 542, 431 A.2d 152, 85 Opinion of the Justices (1981) 121 N.H. 552, 431 A.2d 783, 142,155 Opinion of the Justices (1983) 123 N.H. 349, 461 A.2d 132, 89 Opinion of the Justices (1983) 123 N.H. 510, 463 A.2d 891, 189 Opinion ofthe Justices (1983) 123 N.H. 554, 465 A.2d 484, 72 Opinion ofthe Justices (1985) 126 N.H. 486, 494 A.2d 259, 77 Opinion ofthe Justices (1985) 126 N.H. 490, 494 A.2d 261, 140 Opinion ofthe Justices (1986) 128 N.H. 17, 509 A.2d 746, 118,165,184, 191 Opinion ofthe Justices (1986) 128 N.H. 46, 509 A.2d 749, 86 Opinion ofthe Justices (1987) 129 N.H. 714, 532 A.2d 195, 107 Opinion ofthe Justices (1989) 131 N.H. 640, 557 A.2d 273, 59,122 Opinion ofthe Justices (Weirs Beach) (1991) 134 N.H. 711, 598 A.2d 864, 109 Opinion ofthe Justices (Solid Waste Disposal) (1992) 135 N.H. 543, 608 A.2d 870, 93 Opinion ofthe Justices (DWI Jury Trials) (1992) 135 N.H. 538, 608 A.2d 202, 70 Opinion ofthe Justices (Misdemeanor Trial De Novo) (1992) 135 N.H. 549, 608 A.2d 874, 38 Opinion ofthe Justices (Furlough) (1992) 135 N.H. 625, 609 A.2d 1204, 89 Opinion ofthe Justices (Choice in Education) (1992) 136 N.H. 357, 616 A.2d 478, 45, 47-48, 200 Opinion ofthe Justices (Limitation on Civil Actions) (1993) 137 N.H. 260, 628 A.2d 1069,62,124 Opinion ofthe Justices (Current Use Reimbursement Program) (1993) 137 N.H. 270, 627 A.2d 92, 38 Opinion ofthe Justices (Marital Masters' Contempt Powers) (1994) 138 N.H. 425, 640 A.2d 784, 165 Opinion ofthe Justices (SLAPP Suit Procedure) (1994) 138 N.H. 445, 641 A.2d 1012, 83-^84 Opinion ofthe Justices (Judicial Salary Suspension) (1995) 140 N.H. 297, 666 A.2d 523, 102, 106,186-187 Opinion ofthe Justices (Prior Sexual Assault Evidence) (1997) 141 N.H. 562, 688 A.2d 1006, 106,186-187 Opinion ofthe Justices (Property Taxation of Telephone Poles ) (1997) 142 N.H. 102, 697A.2d 125,121 Opinion of the Justices (School Financing) (1998) 142 N.H. 892, 712 A.2d 1080, 122 Opinion ofthe Justices (Tax Plan Referendum) (1999) 143 N.H. 429, 725 A.2d 1082, 51, 91,114 Opinion of the Justices (Reformed Public School Financing System) (2000) 145 N.H. 474, 765 A.2d 673,198 Orr v Quimby(\&14) 54 N.H. 590, 110 Paey v. Rodrigue (1979) 119 N.H. 186, 400 A.2d 51, 56 Parsons v. Swett (1855) 32 N.H. 87, 203-204 Patton v. Patton (1920) 79 N.H. 388, 109 A. 415, 195-196 Peirce v. Somersworth (1839) 10 N.H. 369, 60 Petition of Abbott (1995) 139 N.H. 412, 653 A.2d 1113, 40, 63 Petition ofDondero (1947) 94 N.H. 236, 51 A.2d 39, 154

Table of Cases

261

Petition of Grimm (1993) 138 N.H. 42, 635 A.2d 456, 186 Petition of Harvey (1967) 108 N.H. 196, 230 A.2d 757, 71 Petition of Keene Sentinel (1992) 136 N.H. 121,612 A.2d 911, 51 Petition ofMone (1998) 143 N.H. 128, 719 A.2d 626, 102,106,117 Petition of Preisendorfer (1998) 143 N.H. 50, 719 A2d 590, 72 Petition of Smith (1994) 139 N.H. 299, 652 A.2d 154, 45 Petition of State Employees' Association of New Hampshire, Inc. (1987) 129 N.H. 536, 529 A.2d 968, 37 Petition of Straw (1917) 78 N.H. 506, 102 A. 628, 195 Petition of Turner (1952) 97 N.H. 449, 91 A.2d 458, 188 Pickering v. Frink (1983) 123 N.H. 326, 461 A.2d 117, 97 Piper v. Town of Meredith (1969) 109 N.H. 328, 251 A.2d 328, 188 Pollard v. Gregg (1914) 77 N.H. 190, 90 A. 176, 142 Pomponio v. State (1965) 106 N.H. 273, 209 A.2d 733, 83 Proctor v Butler (1977) 117 N.H. 927, 380 A.2d 673, 73 Proprietors ofthe Piscataqua Bridge v. New Hampshire Bridge (1834) 7 N.H. 35, 60 Provencal v. Provencal (1982) 122 N.H. 793, 451 A.2d 374, 40 Quirk v. Town of New Boston (1995) 140 N.H. 124, 663 A.2d 1328, 60 R.A. V. v. St. Paul (1992) 505 U.S. 377, 86 Reynolds v. Damrell (1849) 19 N.H. 394, 204 Reynolds v. Sims (1964) 377 U.S. 533, 32, 214 Rix v. Asadoorian (1961) 103 N.H. 330, 171 A.2d 925, 210 Robinson v. California (1962) 370 U.S. 660, 97 Robinson v. Carroll (1934) 87 N.H. 114, 174 A. 772, 196 Rockingham County Light & Power Co. v. Hobbs (1904) 72 N.H. 531, 58 A. 46, 60 Rollins v. City of Dover (1945) 93 N.H. 448, 44 A.2d 113, 59 Roman v. Sincock (1964)377 U.S. 695, 32 Rooney v. Fireman's Fund Ins. Co. (1994) 138 N.H. 637, 645 A.2d 52, 41 Rosenblum v. Griffin (1938) 89 N.H. 314, 197 A. 701, 53 Rousseau v. Eshleman (1986) 128 N.H. 564, 519 A.2d 243, 187 Royer v. Department of Employment Security (1978) 118 N.H. 673, 394 A.2d 828, 72 St. Paul's Church v. City of Concord(1910) 75 N.H. 420, 75 A. 531, 48 Samaha v. Grafton County (1985) 126 N.H. 583, 493 A.2d 1207, 197 Sanborn v. Sanborn (1983) 123 N.H. 740, 48 Sanderson v. Town ofCandia (2001) 146 N.H. 598, 787 A.2d 167, 60 Seabrook Police Association v. Town of Seabrook (1993) 138 N.H. 177, 635 A.2d 1371, 38 Sedgewick v. City of Dover (1982) 122 N.H. 193, 444 A.2d 490, 109 Sirrell v. State (2001) 146 N.H. 364, 780 A.2d 494, 126 Sisters of Mercy v. Town ofHooksett (1945) 93 N.H. 301, 42 A.2d 222, 198 Smith v. New Hampshire Department of Revenue Administration (1997) 141 N.H. 681, 692 A.2d 486, 59,119 Smith v. Sampson (1974) 114 N.H. 638, 325 A.2d 796, 89 Smith v. Tallman (1934) 87 N.H. 176, 175 A. 857, 192, 204 Smith v. Town ofWolfeboro (1992) 136 N.H. 337, 615 A.2d 1252, 60 Solem v. Helm (1983) 463 U.S. 277, 79 Sousa v State (1975) 115 N.H. 340, 341 A.2d 282, 65, 97 State ex rel. Thomson v. State Board of Parole (1975) 115 N.H. 414, 342 A.2d 634, 158 State v. Akers (1979) 119 N.H. 161, 400 A.2d 38, 88 State v. Albee (1881) 61 N.H. 423, 77

262

Table of Cases

State v. Albers (1973) 113 N.H. 132, 303 A.2d 197, 43, 96 State v. Amyot (1979) 119 N.H. 671, 407 A.2d 812, 37-38 State v. Bailey (1985) 127 N.H. 416, 503 A.2d 762, 70 State v. Ball (1983) 124 N.H. 226, 471 A.2d 347, 35, 80-81 State v. Ballou (1984) 125 N.H. 304, 481 A.2d 260, 88-89 State v. Barnaby (1995) 139 N.H. 420, 653 A.2d 1124, 64 State v. Basinow (1977) 117 N.H. 176, 371 A.2d 458, 62, 64 State v. Benoit (1985) 126 N.H. 6, 490 A.2d 295, 67 State v. Berthiaume (1983) 124 N.H. 264, 470 A.2d 893, 82 State v. Berube (1983) 123 N.H. 771, 465 A.2d 509, 67 State v. Blair (1999) 143 N.H. 669, 732 A.2d 448, 73 State v. Bradford (1876) 57 N.H. 188, 204 State v. Breest(\916) 116 N.H. 734, 367 A.2d 1320, 88 State v. Brodeur (1985) 126 N.H. 411, 493 A.2d 1134, 81 State v. Brodowski (1991) 135 N.H. 197, 600 A.2d 925, 70-71 State v. Brosseau (1983) 124 N.H. 184, 470 A.2d 869, 63 State v. Butler (1977) 117 N.H. 888, 379 A.2d 827, 67 State v. Canelo (1995) 139 N.H. 376, 653 A.2d 1097, 80-82 State v. Cannuli (1998) 143 N.H. 149, 722 A.2d 450, 82 State v. Castle (1986) 128 N.H. 649, 517 A.2d 848, 69-70 State v. Chong(\9%\) 121 N.H. 860, 435 A.2d 538, 96 State v. Christensen (1992) 135 N.H. 583, 607 A.2d 952, 69 State v. Cole (1978) 118 N.H. 829, 395 A.2d 189, 64 State v. Comley (1988) 130 N.H. 688, 546 A.2d 1066, 85-86, 96,144 State v. Constant (1992) 135 N.H. 254, 605 A.2d 206, 75 State v. Cormier (1985) 127 N.H. 253, 499 A.2d 986, 66 State v. Corron (1905) 73 N.H. 434, 62 A. 1044, 44 State v. Corson (1991) 134 N.H. 430, 593 A.2d 248, 84,98 State v. Costello (1994) 138 N.H. 587, 643 A.2d 531, 88, 99 State v. Cote (1948) 95 N.H. 108, 58 A.2d 749, 66 State v. Cote (1999) 143 N.H. 368, 725 A.2d 652, 68 State v. Courtemarche (1998) 142 N.H. 772, 711 A.2d 248, 76 State v. COJC(1940)91N.H. 137, 16 A.2d 508, affd 312 U.S. 569(1941), 45, 110 State v. Gushing (1979) 119 N.H. 147, 399 A.2d 297, 64 State v. Daniel (1997) 142 N.H. 54, 694 A.2d 989, 82 State v. Dayutis (1985) 127 N.H. 101, 498 A.2d 325, 79 State v. Dean (1975) 115 N.H. 520, 345 A.2d 408, 98,120 State v. Dedrick (1992) 135 N.H. 502, 607 A.2d 127, 67 State v. Deflorio (1986) 128 N.H. 309, 512 A.2d 1133, 79, 98 State v. Derrickson (1951) 97 N.H. 91, 81 A.2d 312, 43 State v. Dixon (1999) 144 N.H. 273, 741 A2d 580, 69 State v. Doe (1975) 115 N.H. 682, 371 A.2d 167, 82 State v. Drake (1995) 139 N.H. 662, 662 A.2d 265, 82 State v. Drew (1937) 89 N.H. 54, 192 A. 629, 45-45 State v. Drewry (1995) 139 N.H. 678, 661 A.2d 1181, 74 State v. Dufield (1979) 119 N.H. 28, 398 A.2d 818, 101 State v. Dushame (1992) 136 N.H. 309, 616 A.2d 469, 70 State v. Elbert (\9%\) 121 N.H. 43, 424 A.2d 1147, 187 State v. Elbert (1984) 125 N.H. 1, 480 A.2d 854, 79, 107 State v. Elbert (1986) 128 N.H. 210, 512 A.2d 1114, 76

Table of Cases

263

State v. Evans (1985) 127 N.H. 501, 506 A.2d 695, 79, 98 State v. Farrow (1978) 118 N.H. 296, 386 A.2d 808, 79, 98 State v. Fielders (1983) 124 N.H. 310, 470 A.2d 897, 76 State v. Finn (2001) 146 N.H. 59, 767 A.2d 413, 82 State v. Fitzgerald (1993) 137 N.H. 23, 622 A.2d 1245, 75 State v. Foster (1921) 80 N.H. 1, 113 A. 211,79 State v. Eraser (1980) 120 N.H. 117, 411 A.2d 1125, 79 State v. Gendron (1922) 80 N.H. 394, 118 A. 814, 75 State v. Gerry (1896) 68 N.H. 495, 38 A. 272, 70, 192 State v. Goff(\918) 118 N.H. 724, 393 A.2d 562, 49 State v. Goodnow (1995) 140 N.H. 38, 662 A.2d 950, 75 State v. Goodwin (1958) 101 N.H. 252, 139 A.2d 630, 66 State v. Gosselin (1977) 117 N.H. 115, 370 A.2d 264, 75-76 State v. Graca (1998) 142 N.H. 670, 708 A.2d 393, 81 State v. Graf (\99S) 143 N.H. 294, 726 A2d 1270, 67 State v. Gregoire (1978) 118 N.H. 140, 384 A.2d 132, 73 State v. Guajardo (1992) 135 N.H. 401, 605 A.2d 217, 68 State v. Gullick(mO) 120 N.H. 99, 411 A.2d 1113, 71 State v. Handfield (1975) 115 N.H. 628, 348 A.2d 352, appeal dismissed, 427 U.S. 909 (1976), 193 State v. Hannan (1993) 137 N.H. 612, 631 A.2d 531, 70 State v. Harvey (1965) 106 N.H. 446, 213 A.2d 428, 188 State v. Harvey (1967) 108 N.H. 139, 229 A.2d 176, 86, 96 State v. Hastings (1980) 120 N.H. 454, 417 A.2d 7, 64-65,186 State v Hayes (1881) 61 N.H. 264, 50,114 State v. Hazen (1988) 131 N.H. 196, 552 A.2d 77, 82 State v. Hennessey (1997) 142 N.H. 149, 697 A.2d 930, 76 State v. Hoag (2000) 145 N.H. 47, 749 A.2d 331, 71 State v. Hogg (1978) 118 N.H. 262, 385 A.2d 844, 75 State v. Houtenbrink (1988) 130 N.H. 385, 539 A.2d 714, 75 State v. Howard (1981) 121 N.H. 53, 426 A.2d 457, 69 State v. Huffman (1992) 136 N.H. 149, 613 A.2d 476, 78 State v. Hughes (1992) 135 N.H. 413, 605 A.2d 1062, 64 State v. Isaac (1979) 119 N.H. 971, 409 A.2d 1354, 64 State v. Jackson (1898) 69 N.H. 511, 43 A. 749, 192-193, 209 State v. Jackson (1902) 71 N.H. 552, 53 A. 1021, 43,199 State v. Jaroma (1993) 137 N.H. 562, 630 A.2d 1173, 101 State v. Kellenbeck (1984) 124 N.H. 760, 474 A.2d 1388, 82 State v. Kimball (1950) 96 N.H. 377, 77 A.2d 115, 174 State v. King (1988) 131 N.H. 173, 551 A.2d 973, 76 State v. Koppel (1985) 127 N.H. 286, 499 A.2d 977, 81 State v. Laaman (1974) 114 N.H. 794, 331 A.2d 354, 71, 78 State v. LaClair (1981) 121 N.H. 743, 433 A.2d 1326, 69 State v. LaFrance (1983) 124 N.H. 171, 471 A.2d 340, 92, 100 State v. LaPorte (1991) 134 N.H. 73, 587 A.2d 1237, 41 State v. Lavallee (1979) 119 N.H. 207, 400 A.2d 480, 67 State v. Laurie (1992) 135 N.H. 438, 606 A2d 1077, 67 State v. Laurie (1995) 139 N.H. 325, 653 A.2d 549, 67 State v. Linsky (1977) 117 N.H. 866, 379 A.2d 813, 101 State v. Mara (1951) 96 N.H. 463, 78 A.2d 922, 81

264 State v. Marti (2001) 147 N.H. 168, 784 A.2d 1193, 75 State v. McGann (1983) 124 N.H. 101, 467 A.2d 571, 80 State v. McNab (1849) 20 N.H. 160, 98 State v. Monroe (1998) 142 N.H. 857, 711 A.2d 878, 67 State v. Montella (1992) 135 N.H. 698, 610 A.2d 351, 76 State v. Morrill (1983) 123 N.H. 707, 465 A.2d 882, 70 State v. Murray (1992) 135 N.H. 369, 605 A.2d 676, 81 State v. Nash (1979) 119 N.H. 728, 407 A.2d 365, 67 State v. Newcomb (1995) 140 N.H. 72, 663 A.2d 613, 67 State v. Nickerson (1980) 120 N.H. 821, 424 A.2d 190, 86, 96 State v. Nowell (1878) 58 N.H. 314, 66 State v. OWe/7/(1963) 105 N.H. 15, 191 A.2d 528, 66 State v. Paquin (1995) 140 N.H. 525, 668 A.2d 47, 76 State v. Patch (1997) 142 N.H. 453, 702 A.2d 1278, 82 State v. Pellicci (1990) 133 N.H. 523, 580 A.2d 710, 80 State v. Pennoyer(1889) 65 N.H. 113, 18 A. 878, 52 State v. Phinney (1977) 117 N.H. 145, 370 A.2d 1153,67 State v. Pinder (1985) 126 N.H. 220, 489 A.2d 653, 81 State v. Pinder (1986) 128 N.H. 66, 514 A.2d 1241, 81 State v. Pinsince (1963) 105 N.H. 38, 192 A.2d 605, 43-44, 95 State v. Pliskaner (1986) 128 N.H. 486, 517 A.2d 795, 79 State v. Poulicakos (1989) 131 N.H. 709, 559 A.2d 1341, 69 State v. Pugliese (1980) 120 N.H. 728, 422 A.2d 1319, 76 State v. Ramos (1981) 121 N.H. 863, 435 A.2d 1122, 69 State v. Ray (1885) 63 N.H. 406, 70 State v. Reynolds (1994) 138 N.H. 519, 642 A.2d 1368, 88 State v. Rheaume (1922) 80 N.H. 319, 116 A. 758, 85 State v. Robert H (1978) 118 N.H. 713, 393 A.2d 1387, 40 State v. Roberts (1908) 74 N.H. 476, 69 A. 722, 199 State v. Roberts (1993) 136 N.H. 731, 622 A.2d 1225, 69 State v. Rollins (1837) 8 N.H. 550, 206 State v. Rouston (1929) 84 N.H. 140, 146 A. 870, 66 State v. Sanne (1976) 116 N.H. 583, 364 A.2d 630, 42 State v. Santana (1991) 133 N.H. 798, 586 A.2d 77, 81 State v. Saunders (1889) 66 N.H. 39, 25 A. 588, 30 State v. Sawtelle (1891) 66 N.H. 488, 32 A. 831, 100 State v. Scarborough (1983) 124 N.H. 363, 470 A.2d 909, 74 State v. Settle (1982) 122 N.H. 214, 447 A2d 1284, 81 State v. Sias (1845) 7 N.H. 558, 75 State v. Sidebotham (1984) 124 N.H. 682, 474 A.2d 1377, 82 State v. Siel (1982) 122 N.H. 254, 444 A.2d 499, 86-37 State v. Silverman (1912) 76 N.H. 309, 82 A. 536, 66 State v. Silvestri (1992) 136 N.H. 522, 618 A.2d 821, 82 State v. Smart (1993) 136 N.H. 639, 622 A.2d 1197, 71 State v. Smith (1953) 98 N.H. 149, 95 A.2d 789, 75 State v. Smith (1990) 132 N.H. 756, 571 A.2d 279, 42 State v. Staples (1981) 121 N.H. 959, 437 A.2d 266, 74 State v. Steams (1988) 130 N.H. 475, 547 A.2d 672, 79 State v. Sterndale (1995) 139 N.H. 445, 656 A.2d 409, 81 State v. Stevens (1916) 78 N.H. 268, 99 A. 723, 44

Table of Cases

Table of Cases

265

State v. Stow (1993) 136 N.H. 598, 620 A.2d 1023, 64 State v. Sullivan (1958) 101 N.H. 429, 146 A.2d 1, 57 State v. Sullivan (1981) 121 N.H. 301, 428 A.2d 1247, 78 State v. Tapply (1983) 124 N.H. 318, 470 A.2d 900, 80 State v. Taylor (1978) 118 N.H. 859, 395 A.2d 1239, 67 State v. Taylor (1981) 121 N.H. 489, 431 A.2d 775, 66 State v. Thayer(\91S) 118 N.H. 819, 395 A.2d 500, 120 State v. Therrien (1987) 129 N.H. 765, 533 A.2d 346, 66 State v. Thompson (1850) 20 N.H. 250, 78 State v. Thorp (1976) 116 N.H. 303, 358 A.2d 655, 81 State v. Tinkham (1998) 143 N.H. 73, 719 A.2d 580, 82 State v. Turmelle (1989) 132 N.H. 148, 562 A2d 196, 81 State v. U.S. & Canada Express Co. (1880) 60 N.H. 219, 53,114,117 State v. Vashaw (1973) 113 N.H. 636, 312 A.2d 692, 88-89 State v. Weber (1993) 137 N.H. 193, 624 A.2d 967, 68 State v. Webster (1843) 13 N.H. 491, 101 State v. Weitzman (1981) 121 N.H. 83, 427 A.2d 3, 44 State v. Wellman (1986) 128 N.H. 340, 513 A.2d 944, 101 State v. Wentworth (1978) 118 N.H. 832, 395 A.2d 858, 99, 187 State v. Wheeler (1980) 120 N.H. 496, 416 A.2d 1384, 98 State v. Wheeler (1986) 128 N.H. 767, 519 A.2d 289, 66 State v. White (1886) 64 N.H. 48, 5 A. 828, 45 State v. Wier (1994) 138 N.H. 671, 645 A.2d 56, 70 State v. Wilson (1869) 48 N.H. 398, 71 State v. Wong (1984) 125 N.H. 610, 486 A.2d 262, 120 State v. Woodsum (1993) 137 N.H. 198, 624 A.2d 1342, 67 State v. Wright (1985) 126 N.H. 643, 496 A.2d 702, 66 Steams v Wright (1872) 51 N.H. 600, 194,196 Sununu v. Ballot Law Commission (1982) 122 N.H. 852, 451 A.2d 177, 56 Sununu v. Stark (D.N.H. 1974) 383 F. Supp. 1287, affd 420 U.S. 958 (1975), 149 Texas v. Brown (1983) 460 U.S. 730, 81 Thomas Tool Services, Inc. v. Town ofCroydon (2000) 145 N.H. 218, 761 A.2d 439, 61 Thompson v. Kidder (1906) 74 N.H. 89, 65 A. 392, 125 Town of Canaan v. Enfield Village Fire District (1908) 74 N.H. 517, 70 A. 250, 91 Town of Hampton v. Brust (1982) 122 N.H. 463, 446 A.2d 458, 60 Town of Hampton v. Hampton Beach Improvement Co. (1966) 107 N.H. 89, 218 A.2d 442, 123 Town of Henniker v. Homo (1992) 136 N.H. 88, 612 A.2d 364, 84 Town of New London v. Colby Academy (1898) 69 N.H. 443, 46 A. 743, 121,199 Town of Nottingham v. Cedar Waters, Inc. (1975) 118 N.H. 282, 214 Trovato v. Deveau (1999) 143 N.H. 523, 736 A.2d 1212, 63 Trustees of Dartmouth College v. Woodward (1817) 1 N.H. Ill, reversed, 17 U.S. 518 (1819), 119,214 Trustees of Phillips Exeter Academy v. Exeter (1940) 90 N.H. 472, 27 A.2d 569, 49, 5 3 54,61,107,199 Tuftonboro v. Willard (1938) 89 N.H. 253, 197 A. 404, 100 Union Baptist Society v Town ofCandia (1819) 2 N.H. 20, 48 Union Leader Corporation v. Chandler (1979) 119 N.H. 442, 402 A.2d 914, 52 Union Leader Corporation v. City of Nashua (1996) 141 N.H. 473, 686 A.2d 310, 51-52

266

Table of Cases

Union Leader Corporation v. New Hampshire Housing Finance Authority (1997) 142 N.H. 540, 705 A.2d 725, 52 United States v. Leon (1984) 468 U.S. 897, 81 United States v. Salvucci (1980) 448 U.S. 83, 82,110 United States v. Seeger (1965) 380 U.S. 163, 61 Veino v. Veino (1951) 96 N.H. 439, 78 A.2d 522, 191 Velishka v. City of Nashua (1954) 99 N.H. 161, 106 A.2d 571, 53 Warburton v. Thomas (1992) 136 N.H. 383, 616 A.2d 495, 141,164 Warde v. Manchester (1876) 56 N.H. 508, 48 Warner v. Warner (1897) 69 N.H. 137, 44 A. 908, 191 Welzenbach v. Powers (1995) 139 N.H. 688, 660 A.2d 1133, 63 Wentworth v. Farmington (1871) 51 N.H. 128, 202 Wesberry v. Sanders (1964) 376 U.S. 1, 32 Wilkes v. Jackson (1958) 101 N.H. 420, 145 A.2d 169, 56 Williams v. State (1924) 81 N.H. 341, 125 A. 661, 125 Wilmarth v. King (\90%) 74 N.H. 512, 69 A. 889, 192 Winslow v. Holderness Planning Board (1984) 125 N.H. 262, 480 A.2d 114, 101 WMCA, Inc. v. Lomenzo (1964) 377 U.S. 633, 32 Woart v. Winnick (1826) 3 N.H. 473, 88 Wyman v. Uphaus (1957) 100 N.H. 436, 130 A.2d 278, 44, 46, 99

Index

Adams, John, 9, 11, 27, 29-30, 37, 50, 85, 110-111, 198,215 Administrative rules Agency rules, 92, 114 Judicial branch, 23, 186-187, 220 Veto of agency rules, 142, 155, 221 Allen, William, 15 Arms Right to bear and keep, 2, 33, 42-43, 220 Conscientious objectors not required to bear, 61,220 Bill of Rights, 2, 7-11, 13, 16, 24, 2627,35,37-110, 120,205,220 In original 1784 Constitution, 2, 11, 13,27 Not found in 1776 Constitution, 7 Budget bills, restrictions, 4, 107, 139141, 162,221 Charters, referendum required for changes in municipal, 25, 33, 54, 108, 110-111 Chase, Justice William Martin, 19-20, 29,32 Civil officers, oaths of, 4, 118, 182183,201-203 Civil War, 17,57-59 Commission to study the state constitution, 33, 149, 172, 184-185,

215. See also Task force to study the state constitution Commissioned officers Removal by address, 23, 185, 220 Commissions, form of, 185-186, 203 Committee of correspondence, 4-5 Committee of safety, 6-7, 104 Concord, 1,9-10, 12,20, 133 Location of world's first constitutional convention, 1,9-10 Connecticut River valley towns secession crisis, 7-11 Conscientious objectors, 61, 220 Constitution Amendments adopted and proposed by topic, 218-221 Amendments from 1792-2002, summary of, 2-4, 12-27, 222-223 Enrollment of, 214 Method of amendment, 3, 7, 12-13, 16-17,210-213,221 When to take effect, 209-210 Constitution of 1776, 1, 3-10, 17, 2829, 105, 139, 182, 193,206 Text of, 224-226, 247 Constitution as adopted in 1784, 1-3, 9-15, 20, 31, 37, 46-47, 50, 55, 61, 65^66, 70, 77, 79-80, 82-83, 85, 87, 91,95, 100,104-105, 115, 119, 125, 129, 132-136, 172-174, 176, 178183, 185, 187, 190-195, 197-198, 202-203,205,211,214

268 Adoption of, 9-12 Revision in 1792-1793, 1-2, 12-15, 22,30-31,36 Text in 1784,214,227-247 Constitutional conventions, 1-2, 9-27, 217,222-223,249-250 Calling of, 210-212 Convention of 1778-1779, 1,8-11, 29 Convention of 1781-1784, 1, 11-12, 15,29 Dates of, 217 Election of delegates, 210-212 Journals of, 223, 248 Contempt, 75, 99, 101, 106, 117, 142, 165,214 Difference between direct and indirect, 214 Continental Congress, 4-5, 9-10, 28 Corporations Prohibition on benefit to private, 17, 118-119, 122-123,221 County attorney Election of, 182-183 County constitutional officers, 2, 6, 164, 182-183 Election of, 164, 182-183 County sheriff, 151, 156, 164, 182183, 193-194,204,208 Age disqualification, 193-194 Election of, 182-183 County treasurer, 2, 6, 30, 182-183 Courts, 3, 17, 22-23, 116-118, 183197,215,220 Clerks, appointment of, 6, 196-197 Jurisdiction of, 116-118, 183-184, 191-193, 195-196,219 Probate court, 14, 23 Appeals from, 191 Jurisdiction and term of, 14, 195196 Special session fees, 64 Superior court, 3, 17, 23, 64, 117, 183-184,215,220 Jurisdiction over marital matters, 191 Probate court appeals to, 191 Supreme court, 3-4, 17, 23, 54-55, 100, 117, 183-184,215,220

Index Chief justice administrative head of courts, 3, 23, 186-187, 220 Court rules, 23, 186-187, 220 Opinions of the justices, 187-190 Crime Authority of legislature to define, 118, 120 Punishment proportional to, 78-79 Criminal defendants Insanity defense, 65, 73-74, 220 Rights of, 65-74, 97-99, 206-207, 220 Bail not be excessive, 97-98 Confrontation and crossexamination, 65, 69 Double jeopardy, 74-76 Fair and impartial jury, 70-71 Habeas corpus, 4, 206-207 Indictment, adequacy of, 66 Presence at trial, 69-70 Privilege against selfincrimination, 65-66 Proofs, right to produce all favorable, 65, 67 Public trial, 68-69 Right to counsel, 2, 33, 65, 74, 220 Speedy trial, 64-65 Venue of trial, 76-78,220 Cutt, John, 28 Dartmouth College, 8, 29, 31, 119, 214 Dartmouth College case, 119, 214 Discrimination, 2, 33, 39, 42, 45, 52, 62-63, 86, 220. See also Equal protection No discrimination in availability of civil remedies, 62-63 Prohibition of, 33, 39-42, 52, 220 Due process, 40, 65, 68-74, 78, 88, 97, 100, 110, 154, 156, 185, 194 Meaning of "law ofthe land", 65, 71 Protection against deprivation of property or liberty without due process, 72-73 Education Legislative duty to cherish, 197-199 Lottery revenues for, 26, 128, 221

Index No public money for sectarian schools, 17, 46-48, 197-200, 221 Right to adequate education, 198 Elections, 54—58. See also Voting rights Accessibility to registration and polls, 54-55, 58 Annual vs. biennial elections, 17 Constitutional convention delegates, 210-212 Return of votes, 150-151 Secretary of state, duties relating to, 150-152, 159-160, 175-176, 179180 Eminent domain. See Property Equal protection, 20, 37-42, 47, 52-53. 58-59, 62, 124, 130, 132, 149, 160, 194 Executive branch, 11-14, 18, 22 Executive council, 2-3, 11, 15, 218. See also Governor and council Record of proceedings, 178 Executive councilors, 110, 149, 208 Election districts, 15, 179, 218 Election of, 3, 175-176 Impeachment of, 178 Vacancies, filling of, 176-177 Exeter, 5-7 Adoption of 1776 constitution, 6 Freedom of Assembly, 43, 95-96 Petition, 95-97 Press, 85-87 Religion, 4 4 ^ 6 Establishment clause, 46 Protection of all denominations and sects, 46, 48 Speech, 2, 33, 43, 85-86, 94, 220 General court. See Legislature Government, continuity of, 123-124 Governor, 2-3, 12, 15-16, 22, 28, 36, 49, 107, 114,119, 153, 155-164, 218. See also Executive branch and Governor and council Clarification of executive powers, 22,158-159,171-172,218 Duties and powers of, 158-159 Call special session, 116, 136

269 Commander-in-chief, 13, 22, 171172 Execution ofthe laws, 158 Pardoning power, 172-173 Election of, 3, 159-160 Gubernatorial succession, 15, 22, 167-170,218 Impeachment procedures, 157 Length of term, 22, 159-160, 218 Prohibited from holding other office, 207 Prolonged failure to qualify, 22, 169-170 Qualifications of, 24, 110, 159-160 Veto, 161-164 Item veto, 22, 140, 162,218 Pocket veto, 22, 215, 218 Power of, 3, 13,22, 161-164 Governor and council, 2-3, 87, 106, 116, 121, 127, 152-153. See also Executive council and Governor Adjourn or prorogue legislature, 22, 160-161, 170-171,218 Appointment of officers, 120, 164165 Compensation of, 175 Misconduct, power to punish, 144 Negative on each other, 166 Removal of state officers, 23, 100, 173, 185-186 Warrant for expenditures required, 118-119, 173-174 Grafton County Address, 8 Habeas corpus, 4, 206-207 Hanover, 7-8, 11,29 Hereditary offices prohibited, 52 Highway fund, 26, 126-127, 221 Home rule, 18, 25-26, 94, 108-110, 220 Approval of municipal charter changes by referendum, 25, 33, 108-110 Supreme legislative authority does not extend to municipalities, 108109 Unfunded state mandates, 4, 26, 9 1 93,221 House of representatives. See also Legislature

270 Adjournment, power of, 141 Arrest, limited protection from, 142 Basis of representation, 17, 129-130, 219 Election districts, 129-131 Division of town or city ward, 134 Election every two years, 129-131, 134-136 Election of officers, 142-144 Equal apportionment, 17-18, 20-21, 130 First house of representatives, 5-6 Impeachment, power of, 138-139 Judge of election of its members, 142-144 Misconduct, power to punish, 142144 Qualifications of members, 135-136 Quorum, what constitutes, 141-142 Ratable polls as basis for representation, 12, 14, 17-20, 3032, 128-129 Representative districts Division of town or city ward, 131, 134 Small towns, treatment of, 18,21, 132-134 Rules of proceeding, power to make, 142-144 Size, 2, 11-12, 17-20, 129-131,219 Vacancies, filling of, 138 Impeachment House to impeach, 138-139 Limitations on, 157 Procedures for, 156-157 Senate to try, 156-157 Indictments, form of, 205 Insanity defense Standard of proof in criminal insanity commitments, 65, 73-74 Involuntary civil commitment Standard of proof in civil proceedings, 72-74 Judges and judicial officers, 23, 219220 Age disqualification, 3, 14, 23, 193194,219-220 Appointment of, 3, 11, 164-166

Index Appointment of clerks, 196-197 Impartiality of, 85, 100-102 Impeachment of, 138-139, 156-157, 220 Independence of, 100 Not to act as counsel, 194-196 Prohibited from holding other office, 207-208 Salaries, 3, 23, 100-102, 175, 220 Tenure of office, 11, 100-102, 185186,219-220 Marital masters and board of claims members are not, 118, 165, 184 Removal by address, 23, 185, 220 Judicial branch, 3, 13-14, 18, 22-23, 219-220. See also Courts Jurors Compensation of, 84-85 Impartiality of, 70-71, 78, 84, 100 Jury trial, 74, 82-84, 117 Civil causes, 82-84 No fee for right to trial allowed, 64 Amount in controversy in civil cases, 18,26,70,82-84,210,220 Required in capital cases, 74-75 Justices ofthe peace, 78 Commissioning of, 190-191 Jurisdiction, 14, 192-193, 219 Not to act as counsel, 194 Laws Enacting style of, 207 Existing laws continued, 205-206 Publication of, 144-145 Retrospective laws prohibited, 87-89 Suspension of, 93-94 Legal remedies, free, complete, and prompt, 61-65 Legislative branch, 13-14, 22, 105. See also Legislature Legislature, 251, 219. See also House of representatives and Senate Adjournment, 116, 141, 144, 146, 160-163, 170-171, 179-180, 189, 218-219 Elections, of, 129-136, 146-148 Annual vs. biennial sessions, 17, 103, 115-116, 119, 135-136, 140141,148,219

Index Compensation of, 2, 13, 136-138, 171,219 Duty to cherish education, 197-199 Election of state officers by, 120, 179-180 Ethics booklet, 128,214 How constituted, 114-115 Journals and laws, publication of, 144-145 Meetings of When to meet and dissolve, 115116,219 Governor and council's power to regulate, 160-161, 170-171 Purpose or, 95 Members Not to take fees or act as counsel, 15, 128 Protection from arrest, 142 Mileage payments, 136-138, 143, 171,219 Open sessions required, 15, 129 Powers of Adjustment of census figures, 131-132 Assess taxes, 118, 121-122 Courts, relating to, 14, 22, 23, 116-118 Deciding elections, 159-160,215 Definition of crimes and punishments, 118, 120 Elect own officers, 142-144, 153154 Elect secretary and treasurer, 180 Establishment of courts, 22-23, 116-118 Laws, authority to make, 50, 118120 Naming civil officers, 118, 120— 121 Special sessions, 116, 136-137, 170, 171, 189,219 Livermore, Judge Samuel, 13, 30 Locke, John, 37, 43 Lottery revenues, 26, 128, 221 Lyon, G. Parker, 29 Massachusetts Charter of King William and Queen Mary, 4, 6

271 Constitution of 1780, 1-2, 9-11, 37, 39, 45-46, 49, 50, 52, 55, 59, 6 1 62, 65, 75, 77, 80, 83, 85, 87, 9091,93-97,99-100, 102, 105, 107, 114-115, 117, 119, 125, 129, 134136, 138-139, 141-144, 146, 149, 151-158, 160-162, 164, 168, 171176, 180-181, 158, 187, 190-191, 198,202-209,211,214 Declaration of rights, 110 Massachusetts Bay Colony, 4 Military Appointment of certain officers, 164-166, 176 Conscientious objectors, 61 Governor commander-in-chief, 171172 Martial law limited, 99 Militia, 90, 99, 173-174, 209, 221 Quartering of soldiers, 90-91 Standing armies, 90 Subject to civil power, 90 Money bills, where to originate, 139 Money, computation of, 209 Oaths, civil officers, 4, 201-203 Offices Certain offices incompatible, 2, 207209 Disqualification for bribery or corruption, 209 Hereditary prohibited, 52 Plural office holding, 2-3, 8, 13 Right to hold elective, 25, 54-57, 110, 149-150, 190-191,220 Opinions of the justices, 187-189 Restrictions on questions, 189-190 Who may request, 188 Parsons, Theophilus, 30 Pennsylvania declaration of rights, 2, 28,61, 110 Pensions, 102-104,221 Pierce, Franklin, 16 Plumer, William, 13,29-30 Property requirements for office, 10, 16,135, 149,160,209,221 Property rights, 65, 71-73 Eminent domain, 49, 53, 60, 101 No forfeiture because of suicide, 205

272 No taking without compensation, 58-61 Provincial congresses, 4-7 Public money Disbursements from treasury, 173174 Prohibition on benefit to private corporations, 17, 118-119, 122123,221 Use for sectarian schools prohibited, 17,46-48, 197-200,221 Punishment Cruel or unusual prohibited, 97-99 Excessive fines prohibited, 78-79, 98 Proportional to offense, 78-79 Ratable polls. See House of representatives, Ratable polls as basis for representation Registers of deeds, 30, 208 Election of, 6, 182-183 Division of county into districts permitted, 183 Registers of probate Election of, 182-183, 196-197 Not to act as counsel, 195-196 Religious references Establishment clause, 46 Protection of all denominations and sects, 46, 48 Removal of "Protestanf' references, 26,46-48,214,220 Religious societies to elect own teachers, 46-47 Religious test for office, 16-17, 135— 136, 148, 160,221 Resolves treated as bills, 164 Retirement funds, 26, 33, 102, 104, 221 Retrospective laws Civil cases, no retrospective application allowed, 87-89, 205 Criminal cases, ex post facto laws prohibited, 87-88, 205 Revenues, restricted, 4, 26 Highway fund, 26, 126-127, 221 Lottery revenues for education, 26, 128,221 Retirement fund, 33, 102, 104, 221 Revolution, right of, 52-54

Index Limitations, 53-54 Revolutionary War, 1, 4-7, 20, 53, 105, 128, 191,204-205,207 Right to know, 2, 33, 50-52, 220 Royal government, 4-6, 28 Appointed council, 4 Disintegration of, 5 Governors, 4 Search and seizure, 80-82, 110 Secretary of state, 2, 22, 162, 167-170, 178-181,201,203,208,211,214 Bond required, 181 Deputy secretary, 181 Duties relating to elections, 150-152, 159-160, 175-176, 179-180 Election of, 120, 180 Record proceedings of executive council, 178 Records of state kept, 180-181 Senate. See also Legislature Adjournment, power of, 154 Basis of representation, 14, 17, 2 1 22,219 Election districts, 56, 130, 146-147, 219 Division of town or city ward, 147 Election every two years, 148 Election of officers, 154—155 Impeachments, power to try, 138— 139, 156-157 Judge of election of its members, 153-154 Misconduct, power to punish, 144 Qualifications of members, 110, 148-149,219 Quorum, what constitutes, 155-156 Rules of proceeding, power to make, 155-156 Size, 2, 17,21,146,219 Vacancies, filling of, 148-149, 152153,219 Who presides over, 13, 22, 155-156 Separation of church and state, 17, 4648, 199-200 Separation of powers, 7, 11, 13, 105107 State-mandated programs, 4, 26, 33, 58, 91-93,220 State records, where kept, 180-181

273

Index State sovereignty, 48-50, 113-114 State treasurer, 22, 167-168, 173-174, 208 Election of, 120, 180 Statutes. See Laws Sullivan, John, 9, 13 Task force to study the state constitution, 111. See also Commission to study the state constitution Taxes, 4, 14, 18, 23-24, 46-47, 91, 124-126,218 Abatements and exemptions, 48-49, 59,91, 108, 122-123, 199-200 Current use, 24, 38, 124,218 Exemptions. See Taxes, Abatements and exemptions Income tax, 119, 125, 139, 218 Inheritance taxes, 23, 124-125, 218 Legislative power to levy taxes, 91, 118, 121-122 Means of supporting social contract, 58-59 Poll tax, 12, 14 Property Classification of for tax purposes, 23, 124-126 Tax exemptions. See Taxes, Abatements and exemptions Proportional and reasonable requirement, 23, 118, 121-122 State property tax, 23 Timber tax, 24, 119, 123, 218 Valuations, 124-126 Based on use, 24, 124 Estates, of, 124-126 Toleration Act of 1819, 47 Treasury, disbursements from, 173-174 Trusts and monopolies, legislature to prevent restraint of trade by, 197— 198,200-201

Unfunded state mandates. See Statemandated programs Unincorporated places, 21, 54, 132134, 146-147, 150,211 United States Constitution, 1-2, 13, 20, 22, 24-25, 27-28, 35, 39-40, 42-43, 50, 55, 60, 64, 66-71, 74-75, 79, 81, 85-86, 89-90, 94, 96-98, 160, 194, 206 Venue of criminal prosecutions, 76-78, 87, 220 Vermont, 1,8-11 Veto. See also Governor, Veto Governor's power of, 161-164 Legislative override of, 161 -164 Virginia declaration of rights, 2, 28, 37, 110 Voting rights, 12, 18,24-25, 148-150 Absentee voting, 24-25, 33, 54-55, 57-58 Access to polls, 24-25, 54-55, 58 Age required, 12, 14, 24-25, 33, 5456 Denial for nonpayment of taxes, 24, 33,54-55, 150 Electors, 135, 159 Felons, disenfranchisement of, 5457 Inhabitant, definition of, 149-150 Literacy requirements, 24, 55 Women's suffrage, 24-25, 33, 55 Wentworth, Governor John, 4-6, 52 Weare, Meshech, 6, 8 Woodbury, Levi, 16, 31 Woodward, Bezaleel, 8, 29 World War II, 25 Writs, form of, 203-204 Zoning, 4 1 ^ 2 , 60

About the Author SUSAN E. MARSHALL is an attorney and freelance legal writer and editor. She is currently on the board of editors ofthe New Hampshire Bar Journal and does legal writing contract work for LexisNexis, as well as work in the area of administrative rules for several state agencies.

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