Opinion
No. 5368.
Argued May 6, 1965. Briefs submitted May 10, 1965.
Decided May 12, 1965.
1. The constitutional provision (Pt. II, Art. 41) that the Governor shall be the supreme executive magistrate is implemented by the further provision (Const. Pt. 11, Art. 62) that the Governor and Council shall have authority for ordering and directing the affairs of the State according to the laws of the land.
2. The broad and comprehensive statutory powers of the Governor and Council include the ultimate executive authority over State institutions (RSA 10:1 (supp)) and broad investigatory powers concerning the application of State funds and the methods of business of the State departments (RSA 9:12) and the power to remove public officers for cause after public hearing and due notice of the charges preferred (RSA 4:1).
3. So also the power of the Attorney General to exercise general supervision over State departments to the end that they perform their duties according to law is subject to the direction of the Governor and Council (RSA 7:8) and departmental expenditures are subject to the approval of the Governor and Council (RSA 4:15).
4. It is within the powers of the Governor and Council to direct the Commissioner of Health and Welfare to verbally respond to questions propounded to him in connection with an investigation of State departmental business which a member of the Executive Council was requested to undertake by the Governor, and to suspend him from office upon his refusal.
The plaintiff is Commissioner of Health and Welfare appointed by the Governor and Council. RSA 126-A:4. The defendants are the Governor and the five members of the Executive Council. On April 30, 1965 the defendants passed the following resolution:
"On Monday, April 19, 1965, Executive Councilor, James H. Hayes, sought to question the Commissioner of Health and Welfare, James J. Barry, in connection with an investigation which the Councilor has been requested to undertake by Governor John W. King.
"Commissioner Barry demanded that Councilor Hayes state the nature of his inquiry in writing and state his questions regarding the inquiry in writing.
"Because of the serious implications involved in the line of authority in the administration of the affairs of the State of New Hampshire, raised by this demand on the part of the Commissioner, the Governor and Executive Council hereby orders and decrees that Commissioner Barry reverse his position with regard to this improper demand and agree to verbally respond to any questions, oral or written, that any Councilor may desire to pose to him at any time on authorized State business.
"Commissioner Barry is further ordered to inform the Governor and Council of his willingness to abide by this order by letter to the Secretary of State with copies for distribution to the individual Councilors by not later than 5:00 p.m. on Monday, May 3, 1965. The Governor and Executive Council hereby decrees that failure on the part of the Commissioner to comply with this order will result in his suspension without pay from office as of 5:00 p.m. on Monday, May 3, 1965."
The plaintiff obtained on April 30, 1965 an ex parte injunction from a single Justice of this court temporarily restraining the defendants from enforcing their resolution. The injunctive decree provided that if any further hearing was desired that application was to be made to the Presiding Justice of the Superior Court for Rockingham county. The Superior Court (Leahy, C.J.) on May 3, 1965 continued in force that part of the restraining order which temporarily prohibits the suspension of the plaintiff and vacated the remainder of the injunctive decree. All questions of law were reserved and transferred without ruling to the Supreme Court by Leahy, C.J.
Fuller, Flynn Powell (Mr. Wesley Powell and Mr. Thomas E. Flynn, Jr. orally), for the plaintiff.
Joseph A. Millimet (by brief and orally), special counsel for the defendant, John W. King, Governor of the State of New Hampshire.
The panoply of powers granted to the Governor and Council by the Constitution and statutes of this state is extensive. Part Second, Article 41 of our Constitution provides that the Governor is the "supreme executive magistrate." Opinion of the Justices, 102 N.H. 183, 184. This grant of power is "something more than a verbal adornment of the office" (State ex rel Stubbs v. Dawson, 86 Kan. 180, 187) and is implemented by Part Second, Article 62 of our Constitution, which provides that the Governor and Council have authority ". . . for ordering and directing the affairs of the state, according to the laws of the land." See State v. Simon, 149 Me. 256; Note, Gubernatorial Executive Orders as Devices for Administrative Direction and Control, 50 Iowa L. Rev. 78 (1964); Ransone, The Office of Governor in the United States, c. 11 (1956).
The statutory powers of the Governor and Council are also broad and comprehensive. They have "ultimate executive authority over. . ." the State institutions which are under the jurisdiction of the plaintiff. RSA 10:1 (supp); Laws 1957, 164:4. The power of the Attorney General to" . . . exercise a general supervision over the state departments. . . to the end that they perform their duties according to law" is subject to "the direction of the Governor and Council." RSA 7:8. Departmental expenditures are subject to the approval of the Governor and Council. RSA 4:15. The Governor and Council have broad investigatory powers under RSA 9:12 not only concerning the application of State funds but also relating to the "methods of business of the departments." Under RSA 4:1 the Governor and Council may remove public officers for cause after public hearing and due notice of the charges preferred.
The full exercise of these broad powers demands that inquiries and investigations conducted by the Governor and Council into the activities of State departments and officials be carried on with practical efficiency. If the inquiry and investigation of the activities of State officials were to be conducted only after the questions were reduced to writing and the purpose of the inquiry was stated in writing in advance, information about the conduct of the affairs of the State would be incomplete and unsatisfactory. For all practical purposes executive supervision and control would be relegated to a futile exercise in recording a written cross-examination. This is not the "increased economy and efficiency in the conduct of the affairs of the state" that the statutes contemplate. RSA 9:12.
We conclude that the Governor and Council had authority to obtain the information that was sought by Executive Councilor Hayes and that the demands of the plaintiff as to the manner in which the information would be produced were unwarranted. If the plaintiff fails to comply with the resolution of the Governor and Council adopted on April 30, 1965, he runs the risk of executive sanction including suspension which is part and parcel of the constitutional and statutory powers of the Governor and Council. Consequently the orders restraining suspension of the plaintiff are vacated. Shannon v. Portsmouth, 54 N.H. 183; LaBonte v. Berlin, 85 N.H. 89; Goodwin v. Nashua, 91 N.H. 339. Nothing in this opinion is intended to detract from the plaintiff's right to counsel at any inquiry or investigation.
Injunctive decree and restraining orders vacated; petition dismissed
WHEELER, J., did not sit.