Opinion of the Justices

112 N.H. 433 | N.H. | 1972

To His Excellency the Governor and the Honorable Council:

The undersigned justices of the supreme court submit the following answers to the questions contained in your resolution submitted to this court on December 13, 1972:

Your inquiry presents the question of whether the appoint-merit of a successor to an incumbent in the office of director of economic development should be made for a term which expires four years from the date of appointment of the successor, or for a term which expires four years from the date of expiration of the four-year term of the incumbent, which in this instance was April 1, 1970.

RSA 12-A:3 provides that the director shall serve “for a term of four years from the date of his appointment and until his successor is appointed and qualified.” The provision that an incumbent shall serve beyond the stated term of four years is obviously designed to prevent any hiatus in the functioning of the office. 63 Am. Jur. 2d Public Officers and Employees s. 160 (1972); see Attorney General v. Burnham, 61 N.H. 594 (1882). We see no reason to assume that it was also intended to postpone the beginning of the next four-year statutory term of office. The statute fixes the term of the office, not of the appointee. We do not consider that it extends the term to include a period of holding over. Hence that period will fall within the following four-year term.

While the provisions of RSA 21:34 are not free from ambiguity as applied to the appointment of a successor to one holding over beyond his term, they indicate with reasonable clarity that the vacancy is “created” at the end of the stated four-year term. Thus the vacancy is in the succeeding term of four years which then commences. RSA 12-A:3 provides that the vacancy “shall be filled for the unexpired term . . . .” It follows from these statutory provisions that the appointment in question should be made for the unexpired balance of the succeeding term which will expire on April 1, 1974. See Delaware River Port Auth. v. Hughes, 46 N.J. 451, 217 A.2d 865 (1966).

This interpretation appears to be consistent with the construction given to the statutes in practice, by the officers of the State charged with their application since RSA 21:34 was enacted in 1943. Laws 1943, c. 39; see N.H.H.R. Jour. 63 (January 7, 1943). See also Wyatt v. Board of Equalization, 74 N.H. 552, 570 (1908). Moreover if the appointment of a successor for a full four-year term, regardless of when made, were intended to be authorized, the reason for so providing would be stronger in the case of filling with a new appointee a vacancy unexpired by reason of death or resignation of an incumbent, than it would be in the case of an appointment following a period of holding over, when the incumbent might be reappointed. Yet the statute plainly requires the appointment in the former case to be made for the balance of the unexpired term. RSA 21:34. It is our opinion that consistency imports implication of a like requirement in the latter case.

Joseph M. Eaton, representative of the General Court, Charles G. Douglas III, for Governor-elect Meldrim Thomson, Jr., and James H. Hayes, Executive Councillor, for negative answers. Warren B. Rudman, attorney general, and David H. Souter, deputy attorney general, for affirmative answers.

In our opinion the answer to your first question is “No”; and the answer to the second question is that the duration of the term of the successor should be the unexpired balance of a four-year term which commenced in this case on April 1, 1970.

Frank R. Kenison Laurence I. Duncan Edward J. Lampron William A. Grimes Robert F. Griffith

December 27, 1972.