Opinion of the Justices

103 N.H. 508 | N.H. | 1961

To His Excellency the Governor and the Honorable Council:

The undersigned Justices of the Supreme Court submit the following answers to the inquiries contained in your resolution filed November 1, 1961, relating to the constitutionality of Laws 1961, c. 203 and the obligations of the Governor and Council and other public officers arising thereunder.

Your third question relates to certain mileage payments made to Senators pursuant to Laws 1961, 203:1, before that section was held unconstitutional by Monitor Publishing Co. v. Hill, 103 N. H. 397. The effect of that decision was to establish the illegality of a portion of the payments so made. It has long been the rule that the State may recover public funds paid public officials in good faith but under a mistake of law, such as in the present case. Wisconsin Central Railroad Co. v. United States, 164 U. S. 190; Ellis v. Board of State Auditors, 107 Mich. 528; Norfolk County v. Cook, 211 Mass. 390; Stone v. United States, 286 F. 2d 56, 58-59 (8th Cir. 1961); Restatement, Restitution, s. 46(a); 5 Williston, Contracts (Rev. ed.) s. 1590. The amount recoverable in this instance would be that portion of the payments made to the Senators in excess of the amounts to which they were entitled under RSA 14:15 (supp) as amended by Laws 1957, 272:1. Monitor Publishing Co. v. Hill, 103 N. H. 397.

The duty to enforce obligations due to the State properly devolves upon the executive branch in the first instance. The Governor and Council may therefore determine whether it is reasonable and practical to direct the Attorney General to take such action as circumstances warrant to recover the overpayments. See RSA 7:9. With these qualifications, your third question is answered in the affirmative.

Your first two questions relate to payments made between January 4, 1961 and June 28, 1961 to members of the General Court elected from wards 2 to 9 in Concord. We find it unnecessary to reach the constitutional issue propounded by your first question, or to express an opinion thereon.

The mileage payments made to the members from Concord were made before June 28, 1961 pursuant to RSA 14:17-a (supp) enacted by Laws 1959, 168:1. Under this section the mileage allowed members of the General Court representing the city of Concord from wards 2 to 9 is to be based upon a distance of twelve miles per day, in lieu of the standard mileage table contained in RSA 14:17. In our opinion the provisions of this section of the 1959 statute are unconstitutional for reasons indicated in Monitor Publishing Co. v. Hill, 103 N. H. 397. Members of the General Court representing the city of Concord, like other members of the General Court, are entitled to mileage as provided by RSA 14:15 (supp), as amended by Laws 1957, 272:1. In the case of the members of the General Court representing Concord from wards 2 to 9, the amount recoverable by the State would be the portion of the payments made to such members in excess of the amounts to which they are entitled under RSA 14:15 (supp), as amended by Laws 1957, 272:1. The duty of the executive branch with respect to such overpayments has already been set forth in the answer to your third question.

Your fourth question is understood to ask whether mileage payments not yet made to Senators may be set off against any amounts due the State ffom such Senators because of overpayments made pursuant to the unconstitutional provisions of Laws 1961, 203:1, or Laws 1959,168:1. So understood, the question is answered in the affirmative.

Maurice J. Murphy, Jr., Attorney General and Arthur G. Marx, counsel for the Senate furnished memoranda. Memoranda were also furnished by several members of the Legislature. Frank R. Kenison. Laurence I. Duncan. Amos N. Blandin, Jr. Edward J. Lampron. Stephen M. Wheeler.

November 30, 1961.