Opinion of the Justices

177 A. 655, 87 N.H. 489, 1935 N.H. LEXIS 59

Opinion

To His Excellency the Governor and the Honorable Council:

In answer to your resolution of even date, it is our opinion that by article 49 of the constitution the speaker of the house, and not the president pro tempore of the senate, shall fill a vacancy in the chair of the governor when the chair of the president of the senate is also vacant. The chair of the governor is vacant when, among other reasons, he is absent from the state or under such disability, permanent or temporary, that a substitute is needed to discharge his official duties (Attorney-General v. Taggart, 66 N. H. 362), and a like vacancy exists in the chair of the president of the senate when he is also disabled.

The constitution is explicit that the speaker of the house “shall, during such vacancies, have and exercise all the powers and authorities” of the governor.

The chair of president pro tempore of the senate is not a constitutional office in the sense that the constitution makes specific provisions for it. He is only one of “other officers” besides the president whom the senate may appoint (Constitution, Part II, art. 37), and his office, however far he may act as the president’s substitute, includes no authority to act as the president’s substitute for others.

John E. Allen. Thomas L. Marble. Oliver W. Branch. Peter Woodbury. Elwin L. Page.

March 5, 1935.