Opinion
No. 5103.
Submitted December 10, 1962.
Answer returned December 14, 1962.
1. The Supreme Court declined to render an advisory opinion upon the question propounded by the Governor and Council on the legality of its action in the appointment of a Commissioner of Agriculture where a proceeding involving the same issue presented by the question was in the process of being transferred to the Supreme Court from the Superior Court and there was also pending before the Attorney General a request to institute quo warranto proceedings to determine the right of the appointee to hold office. 2. Quo warranto is a well-established procedure to determine title to public office.
The following resolution adopted by the Governor and Council on November 30, 1962, was filed in this court on December 3, 1962:
"WHEREAS, under the provisions of RSA 426:1, the Governor, with the advice and consent of the Council, shall appoint a State Commissioner of Agriculture for a term of five years and until his successor is appointed and qualified; and
"WHEREAS, the term of Perley I. Fitts of Durham as Commissioner of Agriculture terminated November 18, 1962; and
"WHEREAS, RSA 426:1 in part states that `prior to the appointment of a commissioner, the governor and council shall receive and consider the recommendations of the agricultural advisory board as to such appointment'; and
"WHEREAS, RSA 429:2 in part provides that `upon the expiration of the term of office of the commissioner of agriculture or upon the occurrence of a vacancy in such office, it shall be the duty of the board (agricultural advisory board) to submit advisory recommendations to the governor and council concerning such new appointment or the filling of such vacancy.' and
"WHEREAS, the said Agricultural Advisory Board met on September 10, 1962, at which meeting Perley I. Fitts, Commissioner, and Chairman of the Board, indicated to the members of the Board that his term expired on November 18, 1962, and further advised them that RSA 426:1 provides `for the Board to pass along such information and advice to the Governor as they care to do'; and
"WHEREAS, Perley I. Fitts by letter dated September 10, 1962 notified the Governor with copy to the Executive Councilors of his advice to the Board at the September 10 meeting and stated further in that letter that he was a candidate for reappointment upon the expiration of his term of office (Copies of letter attached); and
"WHEREAS, on September 28, 1962, the Governor nominated Frank T. Buckley as Commissioner of Agriculture, effective November 17, 1962 and said nomination was confirmed by the Council on September 28, 1962; and
"WHEREAS, on October 9, 1962 the Governor addressed a letter to Perley I. Fitts as Commissioner and a letter to the members of the Agricultural Advisory Board inviting communications to the Governor and Council with respect to the appointment of the Commissioner of Agriculture (Copies of letters attached); and
"WHEREAS, the Agricultural Advisory Board on October 9, 1962 addressed a letter to the Governor stating that the Board considered the September 10, 1962 letter from Perley I. Fitts to the Governor as a personal request for reappointment as Commissioner and not as a recommendation from the Agricultural Advisory Board, and stated further in the October 9 letter that `It is obvious that the Board has not made any recommendations yet for Commissioner of Agriculture' (copies of letter attached); and
"WHEREAS, on November 19, 1962, Frank T. Buckley took the oath of office as Commissioner of Agriculture, received the commission and since that date has been serving as Commissioner of Agriculture of The State of New Hampshire; and
"WHEREAS, in view of the circumstances we are in doubt as to the legality with respect to the appointment of Frank T. Buckley as Commissioner of Agriculture;
"Now, therefore, be it
"RESOLVED, by the Governor and Council assembled in Executive Session, that the Justices of the Supreme Court be respectfully requested under the provisions of Part 2, Article 74 of the Constitution of the State of New Hampshire to give their opinion upon the following important question of law:
"1. Was the action taken by the Governor and Council in the appointment of the new Commissioner of Agriculture sufficiently in compliance with RSA 426:1 to make the appointment legal?"
The following answer was returned:
To his Excellency the Governor and the Honorable Council:
The undersigned Justices of the Supreme Court respectfully decline to comply with your request for an advisory opinion on the question contained in your resolution of November 30, 1962, filed in this court on December 3, 1962, which reads as follows: "Was the action taken by the Governor and Council in the appointment of the new Commissioner of Agriculture sufficiently in compliance with RSA 426:1 to make the appointment legal?"
It appears that the Superior Court for Hillsborough County has transferred a reserved case to this court in a petition for a declaratory judgment involving the question submitted by the Governor and Council and related issues. It also appears that there is pending before the Attorney General a request to file a petition in the nature of quo warranto to determine the legality of the appointment of the Commissioner of Agriculture, which is a well-established procedure to determine title to public office. Stickney v. Salem, 96 N.H. 500. Inasmuch as these pending proceedings may develop facts and issues in addition to those contained in the question transmitted by the Governor and Council, or may serve to make the issues more specific and definite, orderly procedure requires that no advisory opinion be given as requested by the Governor and Council. Opinion of the Justices, 101 N.H. 531, 536.
FRANK R. KENISON. LAURENCE I. DUNCAN. AMOS N. BLANDIN, JR. EDWARD J. LAMPRON. STEPHEN M. WHEELER.
December 14, 1962.
Memorandums were furnished by Wyman, Bean Tefft for New Hampshire Agricultural Conference a. and Philip G. Peters for Frank T. Buckley.