There are some governmental powers which properly may be said to belong to more than one branch of the government. II R. POUND, JURISPRUDENCE 330-31 (1959); Opinion of the Justices, 118 N.H. 582, 585, 392 A.2d 125, 127-28 (1978); see Ferretti v. Jackson, 88 N.H. 296, 299, 188 A. 474, 476-77 (1936). It is clear, however, that an improper imposition upon one branch of government of the powers of another branch or an encroachment upon the powers of one branch by another branch violates the separation of powers requirement of the constitution.
Thus, part I, article 37 "has continued to receive a practical construction" (Opinion of the Justices, 102 N.H. 195, 197, 152 A.2d 878, 880) and has been acknowledged to contemplate "some overlapping and duality as a matter of practical and essential expediency." Cloutier v. State Milk Control Board, 92 N.H. 199, 203, 28 A.2d 554, 557; Pomponio v. State, 106 N.H. 273, 275, 209 A.2d 733, 735; Ferretti v. Jackson, 88 N.H. 296, 299, 188 A. 474, 476-77; Opinion of the Justices, 85 N.H. 562, 567, 68, 154 A. 217, 223. Part I, article 37 does not require the erection of impenetrable barriers between the branches since "there are governmental powers of doubtful classification which may be held properly to belong to either of more than one department of government."
Part I, Article 37 is a "provision of interrelation." Ferretti v. Jackson, 88 N.H. 296, 299 (1936). "Unlike most state constitutions the language of the New Hampshire Constitution recognizes that separation of powers in a workable government cannot be absolute."
Indeed, a legislative enactment that gives a board greater discretion than that needed to "fill in details" is invalid. Ferretti v. Jackson, 88 N.H. 296, 302, 188 A. 474, 478 (1936); State v. Normand, 76 N.H. 541, 85 A. 899 (1913). If a board, in making a rule, acts beyond the limited discretion granted by a valid enactment, the rule is invalid.
of the federal constitution or of the constitution of the State of Mississippi. Abbotts Dairies v. Armstrong, 14 N.J. 319, 102 A.2d 372; Albert v. Milk Control Board, 210 Ind. 283, 200 N.E. 688; Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 115 A.L.R. 1436; Baldwin v. Seelig, 294 U.S. 511, 79 L.Ed. 1032, 55 S.Ct. 497, 101 A.L.R. 55; Board of Suprs. of Elizabeth City County v. Milk Comm., 191 Va. 1, 60 S.E.2d 35; Board of Suprs. of Elizabeth City County v. Milk Comm., 340 U.S. 881, 95 L.Ed. 640, 71 S.Ct. 198; Bohannon v. Duncan, 185 Ga. 840, 196 S.E. 897; Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 79 L.Ed. 281, 55 S.Ct. 187; Borden's Farm Products v. Ten Eyck, 297 U.S. 251, 80 L.Ed. 469, 56 S.Ct. 453; Cloutier v. Milk Control Board, 92 N.H. 199, 28 A.2d 554; Colteryahn Sanitary Dairy Co. v. Milk Control Comm., 332 Pa. 15, 1 A.2d 775, 122 A.L.R. 1049; Como Farms v. Foran, 6 N.J. Super. 306, 71 A.2d 201; Ex parte Homewood Dairy Products Co., 241 Ala. 470, 3 So.2d 58; Ferretti v. Jackson, 88 N.H. 296, 188 A. 474; Franklin v. State, 232 Ala. 637, 169 So. 295; Gwynette v. Myers (S.C.), 115 S.E.2d 673; Hammerberg v. Farmers Cooperative, 12 Conn. Sup. 465; Hammerberg v. Mercier, 12 Conn. Sup. 67; Harris v. Duncan, 208 Ga. 561, 67 S.E.2d 692; Hegeman Farms Corp. v. Baldwin, 293 U.S. 163, 79 L.Ed. 259, 55 S.Ct. 7; Highland Farms Dairy v. Agnew, 300 U.S. 608, 81 L.Ed. 835, 57 S.Ct. 549; Holcombe v. Georgia Milk Producers' Confederation, 188 Ga. 358, 3 S.E.2d 705; In re opinion of the Justices, 88 N.H. 497, 190 A. 73; Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620, 91 P.2d 577; Miami Home Milk Producers Assn. v. Milk Control Board, 124 Fla. 797, 169 So. 541; Milk Comm. v. Dade County Dairies, 145 Fla. 579, 200 So. 83; Milk Control Board v. Crescent Creamery, 214 Ind. 240, 14 N.E.2d 588, 15 N.E.2d 80; Milk Control Board v. Gosselin's Dairy, 301 Mass. 174, 16 N.E.2d 641; Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 306 U.S. 346, 83 L.Ed. 752, 59 S.Ct. 528; Nebbia v. New York,
Cf. Conway v. Board, supra, 352. See Ferretti v. Jackson, 88 N.H. 296, 302. The act which established the Water Resources Board, as amended, (R. L., c. 266, s. 6) calls for administrative hearing and determination that any proposed undertaking "will be of public use and benefit and within the authority conferred."
From the reference above they may be easily consulted by anyone desiring to further pursue this subject. Amici curiae have called to our attention the following four cases which have held milk control statutes unconstitutional: Van Winkle v. Fred Meyer, Inc., supra, Maryland CooperativeMilk Producers v. Miller, 170 Md. 81 [ 182 A. 432], Ferretti v. Jackson, 88 N.H. 296 [ 188 A. 474], and Griffiths et al. v. Robinson, 181 Wn. 438 [ 43 P.2d 977]. The case of Van Winkle v. Fred Meyer, Inc., supra, has already been shown to be inapplicable, and we refused to follow it, and the case of Griffiths et al. v. Robinson, supra, in the case of Agricultural Prorate Com. v. Superior Court, 5 Cal.2d 550, 571 ( supra).
" Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 79 L. ed. 446, 55 Sup. Ct. 241, 248; Schechter Poultry Corp. v. United States, 295 U.S. 495, 530, 79 L. ed. 1570, 55 Sup. Ct. 837, 843, 97 A.L.R. 947; Field v. Clark, 143 U.S. 649, 36 L. ed. 294, 310, 12 Sup. Ct. 495; Village of Waterbury v. Melendy, supra; In re James, 99 Vt. 265, 274, 132 A. 40. An agency charged with the duty of administering a statute enacted in pursuance of the police power of the State may be vested with a wide discretion, but such discretion must not be unrestrained and arbitrary. It is essential to the validity of the statute that it shall "establish a certain basic standard — a definite and certain policy and rule of action for the guidance of the agency created to administer the law." State v. Newark Milk Co., 118 N.J. Eq. 504, 179 A. 116, 125; People v. Barnett, 344 Ill. 62, 176 N.E. 108, 109, 114, 76 A.L.R. 1044; Ferretti v. Jackson, 88 N.H. 296, 188 A. 474, 478. Only after having fixed a primary standard may the Legislature clothe an administrative body with authority to fill up the details by prescribing reasonable rules and regulations appropriate to the accomplishment of the purpose of the act. United States v. Shreveport Grain and Elevator Co., 287 U.S. 77, 85, 77 L. ed. 175, 53 Sup. Ct. 42, 44; Sabre v. Rutland R.R. Co. supra, 86 Vt. p. 366.
N.H. CONST. pt. I, art. 37. “Part I, Article 37 is a ‘provision of interrelation,’ ” which “ ‘contemplates no absolute fixation and rigidity of powers between the three great departments of government.’ ” New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 386, 13 A.3d 145 (2011) (quoting Ferretti v. Jackson, 88 N.H. 296, 299, 188 A. 474 (1936)). “[W]e have recognized ... that the three branches of government, while distinct, must move in concert whenever possible, as the practical and efficient operation of government is not served by the erection of impenetrable barriers between the branches.”
" Part I, Article 37 is a ‘provision of interrelation,’ " which " ‘contemplates no absolute fixation and rigidity of powers between the three great departments of government.’ " New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 386, 13 A.3d 145 (2011) (quoting Ferretti v. Jackson, 88 N.H. 296, 299, 188 A. 474 (1936) ). "[W]e have recognized ... that the three branches of government, while distinct, must move in concert whenever possible, as the practical and efficient operation of government is not served by the erection of impenetrable barriers between the branches." State v. Martin, 164 N.H. 687, 691, 62 A.3d 864 (2013) (quotations and ellipsis omitted).