Opinion of the Justices

128 A. 684, 81 N.H. 563, 1925 N.H. LEXIS 57

Opinion

To the House of Representatives:

The undersigned, justices of the supreme court, are in receipt of your resolution of April 1, requiring our opinions upon the power of the legislature to enact an income tax in either of several forms. A fundamental question underlying- all these inquiries is whether, under the constitution, any income tax can be laid. The same general question is involved in a suit now pending in this court and involving the validity of a tax laid under the provisions of Laws 1923, Chapter 65.

The constitutional provision under which your inquiries are made has heretofore been construed as not contemplating that we should answer under these circumstances. In 1816, the governor and council were advised that, where opinions were requested upon questions “involving private vested rights which are protected by the constitution,” it was the duty of the justices to request to be excused from expressing any opinion. Opinion of the Justices, 62 N. H. 704, 705.

The same practice has been followed in later instances. Opinion of the Justices, 76 N. H. 601, 609; Opinion of the Justices, 70 N. H. 638.

While portions of the questions relate to matters of detail (rates and exemptions), yet these subsidiary inquiries can hardly be discussed apart from the general one. If we were to attempt to answer them upon a hypothetical assumption that, if any form of income tax could be sustained, certain conclusions would follow as to rates and exemptions, it is not perceived how the fragmentary answers so given could be of service to you.

For these reasons, we respectfully request that we be excused from answering the questions set out in your resolution.

Robert J. Peasl.ee, William A. Plummer, Leslie P. Snow, John E. Allen, Thomas L. Marble.

April 8, 1925.