Opinion
No. 4934.
Submitted June 6, 1961.
Decided June 21, 1961.
1. The power and authority granted to the General Court by N.H. Const., Pt. II, Art. 98 to fix the time when constitutional amendments shall take effect may validly be delegated to the Constitutional Convention.
2. Where the power and authority granted to the General Court by the Constitution (Pt. II, Art. 98) to fix the time when amendments to Constitution shall take effect has been delegated to the Constitutional Convention and the Convention has resolved that the amendments adopted and approved by the voters shall become effective when proclaimed by the Governor, the date of proclamation is the effective date.
3. The amendment to the Constitution, Pt. I, Art. 20th providing that in order to entitle the parties to trial by jury in civil causes the amount in controversy in such cases shall exceed five hundred dollars instead of one hundred dollars is not retroactive in its application.
4. Hence, where at the time the defendant in a civil action requested a trial by jury as well as when the plaintiff moved for a trial by the Court a constitutional amendment to Pt. I, Art. 20th disentitling a party in civil case to a trial by jury as a matter of right unless the amount in controversy exceeds five hundred dollars had not taken effect, the defendant was entitled to trial by jury as it formerly existed in cases where the amount in controversy exceeds one hundred dollars.
AGREED CASE, submitted on stipulated facts, to determine the question whether the plaintiff's suit for medical services furnished the defendant to the value of two hundred sixty dollars was triable by jury. The action was entered in the December term 1958 and sought recovery for medical services previously rendered. The defendant requested a trial by jury in October 1959.
On November 8, 1960 the voters of the state by the requisite two-thirds vote approved the following resolution proposed by the Constitutional Convention convened on December 2, 1959: "Are you in favor of amendment to provide that in order to entitle the parties to trial by jury in civil cases the amount involved in such cases shall exceed $500.00 instead of $100.00 as now provided in our Constitution?" The adoption of the amendment by the voters was proclaimed by the Governor on November 30, 1960.
The plaintiff on November 28, 1960 moved to have the action tried by the Court claiming that the constitutional amendment prevented the defendant from having a jury trial. The Court, on January 3, 1961, granted the plaintiff's motion subject to the defendant's exception. The Court (Morris, J.) reserved and transferred the following issue: "Whether the Amendment to the Constitution shall apply to this action which was commenced prior to the enactment of said amendment, so as to preclude the defendant from having the matter tried by jury?"
Norman A. Plante for the plaintiff, furnished no brief.
James M. Winston for the defendant.
The "courts differ as to whether . . . an amendment becomes effective on the day of the election, at the time when the vote is canvassed, or at the time when the result of the popular vote is made public . . . Unless a constitution specifically provides otherwise, the better rule would seem to be that an amendment does not become effective in any case until the vote has been canvassed and the result announced." Dodd, The Revision and Amendment of State Constitutions, pp. 203-204 (1910); State ex rel Washington v. Coe, 49 Wn.2d 849; Jameson, Constitutional Conventions (4th ed.) 545. In considering the case law regarding effective date of constitutional amendments the wording of a particular state constitution is of the greatest importance. Edwards, Index Digest of State Constitutions (Columbia, Legislative Drafting Research Fund, 1959) p. 22. Our Constitution gives the Legislature the authority to determine the effective date of amendments to the State Constitution. N.H. Const., Pt. II, Art. 98, reads as follows: "[Constitution, When to Take Effect.] To the end that there may be no failure of justice, or danger to the state, by the alterations and amendments made in the constitution, the general court is hereby fully authorized and directed to fix the time when the alterations and amendments shall take effect, and make the necessary arrangements accordingly." Although the Legislature has the authority to determine the effective date of constitutional amendments, this authority may be delegated to the Constitutional Convention. Opinion of the Justices, 76 N.H. 612; Hoar, Constitutional Conventions, 197 (1917).
For more than a century it has been the general practice of the New Hampshire Legislature to delegate to the Constitutional Convention the determination of ". . . the time when such amendments as shall be approved shall take effect . . . ." Laws 1850, c. 959, s. 8. This power delegated to the Convention has in fact been exercised by the Convention and they have provided by resolution that the adopted amendments will take effect when proclaimed by the Governor. See N.H. Compiled Statutes (1854) p. 42. Subsequent acts of the Legislature have used identical or substantially identical language as that used in the 1850 law. Laws 1876, c. 30, s. 8; Laws 1887, c. 107, s. 8; Laws 1901, c. 85, s. 7; Laws 1911, c. 187, s. 7; see also, Colby, Manual of Constitution of New Hampshire, p. 289 (1912); Laws 1917, c. 121, s. 7.
More recent Legislatures have granted the Constitutional Convention the authority to determine the effective date of amendments in more general terms. Laws 1929, c. 190, s. 7; Laws 1937, c. 187, s. 7; Laws 1947, c. 77, s. 7. In each case the Constitutional Convention has passed a resolution providing that the proposed amendments which have been approved by the requisite number of votes "shall take effect and be in force when their adoption is proclaimed by the Governor." Journal of Constitutional Convention (1930) p. 179; Journal of Constitutional Convention (1938) p. 320; Journal of Constitutional Convention (1948) p. 285.
Laws 1955, chapter 42, which originally authorized the Constitutional Convention of 1959, follows the same pattern of delegating authority to the Constitutional Convention to determine the method of ascertaining the vote and the effective date of the adopted amendment. See Opinion of the Justices, 102 N.H. 565; Concrete Company v. Rheaume Builders, 101 N.H. 59. Both in the 1956 Convention and the 1959 Convention, the following resolution was adopted: "IX. Resolved, That such of the proposed amendments as shall have been approved by the requisite number of votes shall take effect and be in force when their adoption is proclaimed by the Governor." Journal of Constitutional Convention (1956) p. 224. See also, RSA 68-A:7 (supp) as inserted by Laws 1961, c. 176.
The foregoing historical summary of the 1959 Constitutional Convention and its predecessors clearly indicates that the amendment to New Hampshire Constitution, Part I, Article 20th, relating to jury trial in civil causes, became effective not on November 8, 1960, when approved by the voters, but on November 30, 1960 when proclaimed by the Governor. Opinion of the Justices, 103 N.H. 333, (decided this day). See New Hampshire Manual for the General Court (No. 37, 1961) p. 622 (popularly known as the Red Book).
There is no indication that the amendment to New Hampshire Constitution, Part I, Article 20th was intended to be retroactive in its application. N.H. Const., Pt. I, Art. 23d. See Opinion of the Justices, 101 N.H. 515. At the time the defendant requested trial by jury, as well as when the plaintiff moved to have this case tried by the court on November 28, 1960, the amendment had not taken effect and the defendant was entitled to trial by jury as it formerly existed in cases where the value in controversy exceeds one hundred dollars. Consequently it follows that the answer to the issue transferred is no, and the defendant is entitled to a jury trial in this action.
Remanded.
All concurred.