Opinion of the Justices

430 A.2d 187, 121 N.H. 423, 1981 N.H. LEXIS 335

Opinion

The following resolution, Senate Resolution No. 7, requesting an opinion of the justices was adopted by the Senate on April 22, 1981, and filed in the supreme court on April 29, 1981:

“Whereas, there is pending before the senate Senate Bill 39-FN, an act to repeal the interest and dividends tax; and

“Whereas, said bill provides for the repeal of chapter 77 of the Revised Statutes Annotated relative to the taxation of incomes; and

“Whereas, questions have arisen as to the constitutionality of the law which the proposed act is designed to repeal; now, therefore, be it

“Resolved by the Senate:

“That the Justices of the Supreme Court be respectfully requested to give their opinion upon the following questions:

“1 Does the supreme legislative power vested in the senate and the house of representatives pursuant to part 2, article 2d. of the constitution of New Hampshire include the power to tax the income of individuals, partnerships, associations, trusts, and fiduciaries?

“2 If the senate and the house of representatives may constitutionally tax income, are the classes of income which are taxed under RSA 77 valid classifications for purposes of taxation pursuant to part 2, articles 5th. and 6th. of the constitution of New Hampshire.

“Be it Further Resolved that the clerk of the Senate transmit 7 copies of this resolution and 7 copies of Senate Bill 39-FN to the Justices of the Supreme Court.”

The following reply was returned:

To the Honorable Senate:

We observe that if the first question of the resolution related to a specific, pending legislative proposal, we would be required by part II, article 74 of our constitution to respond to it. See Opinion of the Justices, 82 N.H. 561, 570, 138 A. 284, 289 (1927). Paragraph three of the resolution, however, makes clear that the request of the Senate concerns the constitutionality of the existing statute, RSA ch. 77, which the proposed law is designed to repeal.

Question two of the resolution clearly concerns the constitutionality of an existing statute, RSA ch. 77. We have recently reaffirmed this court’s long-standing position that the State constitution, N.H. Const, pt. II, art. 74, does not permit the supreme court to advise the legislature on the constitutionality of existing laws. Opinion of the Justices, 121 N.H. 280, 428 A.2d 909 (1981).

Under these circumstances, the justices of the supreme court respectfully request that they be excused from answering the questions contained in the resolution as not being within the spirit or letter of the constitutional provision, N.H. Const, pt. II, art. 74. Opinion of the Justices, 121 N.H. 280, 282, 428 A.2d 909, 910 (1981); Opinion of the Justices, 119 N.H. 266, 268, 401 A.2d 507, 508 (1979).

William A. Grimes Maurice P. Bois Charles G. Douglas, III David A. Brock John W. King

May 26,1981