114 N.H. 165 | N.H. | 1974
To the Honorable Senate:
The undersigned justices of the supreme court make the following answers to your inquiries filed in this court on February 26, 1974, with reference to Senate bill 25, and procedures to be followed with respect to the appointment of a commissioner of health and welfare. If our answer is to be of assistance, time limitations prevent extensive review of considerations leading to the opinions here expressed. Your questions relate to matters with which Senate bill 25 is con
Your resolution states that pursuant to RSA 126-A:4 the advisory commission on health and welfare has nominated two candidates for the office of commissioner of health and welfare, and that the Governor and Council has refused to appoint from these nominees, so that a failure of appointment has resulted. You ask, first: “Is the Governor and Council required to appoint to the office of Commissioner of Health and Welfare one of the two nominees nominated by the Advisory Commission for nomination to said office?”
In a recent advisory opinion returned to the Governor and Council, we gave our opinion that the “mandatory language of RSA 126-A:4 (Supp. 1972)” compelled an answer that the Governor and Council may not designate an individual to serve in the capacity of commissioner. Opinion of the Justices, 113 N.H. 675, 312 A.2d 702 (1973).
The “mandatory language” in question provides in part that the commissioner “shall be appointed by the governor and council from two or more nominees .. . nominated by the advisory commission established by this chapter.” RSA 126-A:4 (Supp. 1973). The legislature may properly prescribe how this appointment shall be made. N.H. Const, pt. II, art. 5; Opinion of the Justices, 110 N.H. 359, 266 A.2d 823 (1970); O’Neil v. Thomson, 114 N.H. 155, 316 A.2d 168 (1974); Seidenberg v. New Mexico Bd. of Medical Examiners, 80 N.M. 135, 452 P.2d 469 (1969); Lanza v. Wagner, 11 N.Y.2d 317, 183 N.E.2d 670, 229 N.Y.S.2d 380 (1962); see Annot., 97 A.L.R.2d 361 (1964).
The legislative history of chapter 126-A, referred to in the cited opinion to the Governor and Council, shows that section 4, as originally enacted in 1961, provided for appointment by that body simply “upon nomination by the advisory commission”. Laws 1961, 222:1. The section in its present form provides for appointment from “two or more nominees
The answer to your first question is that the Governor and Council is required to appoint one of the two nominees nominated by the commission.
Your second question is: “If the answer to the first question is affirmative what is the time limit within which the appointment must be made?”
RSA 126-A:8 (Supp. 1973) suggests the desirability of avoiding delay in excess of thirty days in the appointment of commission members in order “that there shall be the least possible period of less than full membership”. In contrast RSA 126-A:4 (Supp. 1973) contains no time limitation within which either nominations or an appointment of the commissioner shall be made. In the absence of any such limitation of time in section 4, the law would imply the limitation of a “reasonable time”. See Newcomb v. Ray, 99 N.H. 463, 114 A.2d 882 (1955). Although discretion in choosing between nominees is vested in the Governor and Council, and they have a negative upon each other (N.H. Const, pt. II, art. 47), the obligation to appoint rests upon both.
The determination of a reasonable time within which that obligation shall be fulfilled is to be made by them in the light of the need for continuity in the office in question, and the responsibilities of the appointing authorities “for the faithful execution of the laws” (N.H. Const, pt. II, art. 41) and “for ordering and directing the affiars of the state”. Id. pt. II, art. 62.
The answer to your second question is that the time limit within which the appointment must be made rests in the discretion of the Governor and Council, to be decided in the light of articles 41 and 62 supra, and in accordance with the dictates of good conscience and the public interest.
Since the impasse between the commission and the Governor and Council has existed for a period of three months their responsibilities suggest that the end of a reasonable time for making an appointment is near at hand. See Opinion of the Justices, 113 N.H. 675, 312 A.2d 702 (1973); RSA 4:3.
March 6, 1974