Request of Governor and Council

No. 7748

#### Opinion of the Justices

April 15, 1977

*311The following resolution was adopted by the Governor and Council on March 31, 1977, and filed with the supreme court on the same day:

“WHEREAS, prior to November, 1974, Article 33 of the Second Part of the New Hampshire Constitution required that the Governor with a majority of the Executive Council examine the returned copies of the records of election and issue his summons to the duly elected Senators 14 days before the first Wednesday of January;

“WHEREAS, prior to November, 1974, Article 3 of the Second Part of the New Hampshire Constitution required that the Senate and House first assemble biennially on the first Wednesday of January;

“WHEREAS, Article 33 of the Second Part of the New Hampshire Constitution was amended on November 5, 1974, to provide that the Governor and a majority of the Executive Council shall issue a summons 14 days before the first Wednesday of December to those persons who have been chosen Senators;

“WHEREAS, Article 3 of the Second Part of the New Hampshire Constitution was amended on the same date to provide for an organizational meeting of the Senate and House on the first Wednesday of December;

“WHEREAS, said amendments to Articles 3 and 33 of the Second Part of the New Hampshire Constitution became effective on November 6, 1974;

“WHEREAS, Article 33 of the Second Part of the New Hampshire Constitution was the subject of a Referendum to Amend on November 2, 1976, providing that the Secretary of State shall issue a summons 14 days before the first Wednesday of January to those persons who have been chosen Senators and Representatives.

“WHEREAS, the said amendment to Article 33 of the Second Part of the New Hampshire Constitution was declared to be effective on November 24,1976;

“WHEREAS, there appears to be a direct conflict between the 1974 Amendment to Article 3 of the Second Part of the Constitution of New Hampshire and the Provisions of the 1976 Referendum *312to Amend to Article 33 of the Second Part of the Constitution of New Hampshire inasmuch as the former provides that the Senate and House shall assemble for organizational purposes on the first Wednesday of' December, while the latter requires that the Senators and Representatives be summoned by the Secretary of State 14 days before the first Wednesday of January;

“WHEREAS, the Secretary of State is required by RSA 189:22 to furnish copies of the State Constitution to the Board of Education;

“WHEREAS, the Secretary of State has informed the Governor and Executive Council that he will soon be required to expend State funds for the printing of copies of the State Constitution and is in doubt as to which version of Article 33 he should include in his new printing;

“WHEREAS, Article 56 of the Second Part of the New Hampshire Constitution provides that no moneys shall be issued out of the State treasury except by warrant under the hand of the Governor, with the advice and consent of the Executive Council;

“WHEREAS, the Governor and Council are required by RSA 4:15 to assure the prudent and economical expenditure of State moneys; and

“WHEREAS, a printing of a version of the State Constitution which is subsequently determined to be incorrect would result in a waste of State funds since a new printing would thereafter be required, so that the question about the substance of Article 33 is an important question of law on a solemn occasion;

“NOW, THEREFORE, BE IT RESOLVED that the Honorable Justices of the Supreme Court of New Hampshire be respectfully requested to give their opinion on the following two questions:

“1. Were the provisions of the 1976 Referendum to Amend Article 33 of the Second Part of the New Hampshire Constitution eifeetive in changing the date for summoning persons chosen Senators from 14 days prior to the first Wednesday of December to 14 days prior to the first Wednesday of January and, in specifying that same date for summoning persons chosen Representatives ?

“2. If it was not, who may presently summon the persons chosen Senators and Representatives and on what date are they to be summoned?

*313“AND BE IT FURTHER RESOLVED that the Secretary of State be directed to transmit six attested copies of this Resolution to the Clerk of the Supreme Court.”

The following answers were returned:

*To His Excellency the Governor and the Honorable Council:*

The undersigned justices of the supreme court return the following reply to the questions contained in your resolution filed in the supreme court on March 31,1977.

Your questions are as follows:

> 1. Were the provisions of the 1976 Referendum to Amend Article 33 of the Second Part of the New Hampshire Constitution effective in changing the date for summoning persons chosen Senators from 14 days prior to the first Wednesday of December to 14 days prior to the first Wednesday of January and, in specifying that same date for summoning persons chosen Representatives ?

> 2. If it was not, who may presently summon the persons chosen Senators and Representatives and on what date are they to be summoned ?

As stated in your request, part II, article 3 was amended when resolution 14 of the 1974 constitutional convention, which provided for an organizational meeting of the senate and house on the first Wednesday of December was approved by the voters on November 5, 1974. In addition, part II, article 33 was also amended by adoption of the same resolution to change the date of meeting of the senators biennially from the first Wednesday in January to the first Wednesday of December. However resolution 14 did not change that part of New Hampshire Constitution, part II, article 33 which required that “the governor and a majority of the council .. . examine the returned copies of such records” (of the votes) and notify those chosen “to attend and take their seats on that day.”

Resolution 86 adopted by the voters in November 1976 provided a change in part II, article 33 to transfer the duty of examining the returned copies of the records of the voters and summoning those chosen to take their seats from the Governor and Council to the secretary of state. At the time resolution 86 was adopted by the convention, no change had been made in the date of “the first *314Wednesday of January.” That resolution was not concerned with the date but rather with transferring the duty from the Governor and Council to the secretary of state.

The question submitted to the voters on November 2, 1976, relative to resolution 86 asked if they were in favor of amending the constitution “to specify that the receipt and counting of ballots and notification of winners in biennial election contests will be handled by the Secretary of State . . . ?” The Voters’ Guide informed the voters that the constitution then provided that the Governor and Council must examine the record of votes but that the technical job was being done by the secretary of state and that the Governor and Council acted on his advice but that if the amendment was adopted the secretary of state would be required to examine the records and notify the winners. Nowhere was any mention made of a change in dates.

In our opinion, this resolution was concerned only with the transfer of responsibility and not with the date the legislature was to meet and the voters were not informed that the adoption would undo the change in dates which they had made by adoption of resolution 14 in November 1974. *Opinion of the Justices,*115 N.H. 104, 333 A.2d 714 (1975); *Concrete Co. v. Rheaume Builders,*101 N.H. 59, 132 A.2d 133 (1957); *Gerber v. King,*107 N.H. 495, 225 A.2d 620 (1967).

Our answer to your first question, therefore, is that the provisions of the 1976 referendum to amend part II, article 33 were not effective in changing the month from December to January.

Our answer to your second question is that the secretary of state may presently summon the persons chosen senators and representatives 14 days prior to the first Wednesday of December. The article should be printed as adopted by the voters in November 1976 except that the month should be changed to December.

Frank R. Kenison

Edward J. Lampron

William A. Grimes

Maurice P. Bois

Charles G. Douglas III

April 11, 1977

*315Michael R. LaFontaine filed memorandum in behalf of George B. Roberts, Jr., Speaker of the House of Representatives.