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![handle is hein.barjournals/nhlw0003 and id is 1 raw text is: Volume 3, Number 1, Page I
Summary of
License fees are not taxes but are
rather recompense for privilege of
operation and thereby do not need to be
levied proportionately; sections involved
are not money bills within the meaning
of the constitution and therefore may
originate in the State Senate.
OPINION OF THE JUSTICES, 6/8/76.
Your first inquiry is whether the sections
of Senate bill 62 which would impose
direct taxes on pari-mutuel pools may
lawfully be anacted in view of the
provision of the New Hampshire con-
stitution pt. II, art. 18 requiring money
bills to originate in the House of
Representatives. The answer to this
question is Yes, since the proposed
taxes, or required payments in lieu of
taxes so provided for, would not make the
sections in question money bills within
the meaning of the constitution. This is
because they would not be direct taxes
in the constitutional sense, and would not
be taxes upon polls or estates.
Your third question is whether section 8
of the bill conditioning the availability of
tax rates established by section 6 of the bill
(temporary rates for the conduct of dog
races or dog race meets when pool does not
exceed $40,000) may lawfully be enacted in
view of part I, articles 5 and 6 of the
constitution, or any other constitutional
provision. While the phrase secured
obligations relative to the dog racing
facility may be obscure and ambiguous,
it might be assumed to refer to earlier
July 7. 1976
Supreme Court Opinion
provisions of the bill designed to assure
that the person, association or corporation
conducting such events is responsible, and
enjoys sound financial backing. If so, we
perceive no constitutional infringement in
these provisions, which appear to have a
firm foundation in the exercise of the
police power of the State.
On the other hand, if the quoted ex-
pression is intended to refer to the status of
obligations of the licensee (or of its lessor)
which are secured by mortgage of the race
track used by the hcensee and facilities
connected therewith, no justification is
apparent for granting more favorable
temporary rates to the licensee whose
secured obligations are being met,
while denying such relief to the licensee
whose secured obligations are not being
met. This provision can easily be made
more specific and should be clarified.
Your remaining questions numbered 2,
4, and 5, ask whether the provisions of
sections 6 and 9 of the bill separately or in
conjunction with RSA 274:23 1 (Supp. 1975)
may lawfully be enacted in view of articles
5 or 6 of part I of the constitution, or any
other constitutional provision.
The answer to these questions depend
upon the fundamental nature of the
exactions involved. We are here concerned
with legalized gambling under license
from the State, an activity preeminently
calling for regulation under the police
power. The statute deals with a private
enterprise which, of its nature, is not only
privileged, but which presents a social
problem properly coming under the
exercise and jurisdiction of the police
power of the State and which requires
strict regulation and supervision. That the
party seeking the privilege may be
required to pay for some, and to comply
with all the requirements of the statutory
law cannot be questioned.
To the extent that they are designed to
produce revenue over and above the ex-
pense of supervision and regulation, they
doubtless bear some characteristics of a
tax, and in fact have been styled a tax
by the legislation since its inception. It is
our opinion that to the extend that they are
purely revenue producing, as
distinguished from reimbursement for
costs incurred by the state, the exactions
are more properly regarded as recom-
pense for the exercise of the license
privilege granted to the licensee, rather
than a tax in the true sense of the word. As
payment for the privilege of conducting
legalized gambling, the rates which would
be charged to licensees under sections 6
and 9 of the bill would not fall within the
ambit of articles 5 and 6, part II of the
constitution.
No information before us would lead to
the conclusion that the variation in rates
between dog races, harness horse races,
and running horse races referred to in
your fifth question is necessarily arbitrary
and without just reason. Obviously these
Concluded on next page
NHBA Governors Oppose Court Information Rules
Reprinted from the
June 19 Concord Monitor
By Margaret Warner
The N.H. Bar Association Board of
Governors opposes rules proposed by the
state superior court justices limiting
lawyers' release of information in
criminal cases.
Meeting in Whitefield Thursday, the
board voted to disapprove adoption of the
rules, bar association president Joseph
Kerrigan told the N.H. Judicial Council
yesterday. The 16-member board of
governors represents more than 1,200
lawyers in the state.
The superior court justices tentatively
adopted rules May 7 which sharply limit
statements lawyers may make to the press
or public about pending criminal cases.
The board was concerned over just
how much control the superior court could
have over the conduct of lawyers,
Kerrigan said.
The out-going Bar Association
president said the board voted to ask the
superior court justices to defer final action
on the rules until they receive more in-
formation on the issue.
Meanwhile, Chief Justice William W.
Keller, in a letter to the Monitor, said the
justices would postpone final action on the
rules until Oct. 1. The justices had
originally asked for comments from the
state bar by July 1; with final adoption by
the judges slated for later this summer.
And Superior Court Justice Charles G.
Douglas 3rd told a bar association Fair
Trial-Free Press panel yesterday the
press and judiciary should agree on
procedures for deciding publicity issues on
a case-by-case basis, rather than have the
judges adopt one set of rules governing all
future cases.
The board of governors, judicial council
and panel sessions were part of this
weekend's N.H. Bar Association summer
meeting in Whitefield.
Kerrigan said board of governors
members were concerned because the
proposed rules do not limit public
statements law enforcement authorities
may make about pending cases, yet would
bar defense lawyers from rebutting police
statements prejudicial to their clients.
Kerrigan said yesterday the bar
association board hoped the superior court
justices would consider other court
decisions being rendered throughout the
country on the so-called Fair Trial-Free
Press controversy in making their final
decision on the proposed rules.
The rules follow standards set by the
American Bar Association and U.S.
District Court in Concord.
A pending U.S. Supreme Court case,
Cunningham v. the Chicago Council q4:
Lawyers, focuses on similar rules aid
revolves on the question of a lawyer's right
to discuss publicly pending litigation. A
decision on that case is expected from the
high court next month.
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