Article 10 of Part I of the Constitution of New Hampshire (Article 10, Part II relates to classification of town governments) is mentioned in five reported appellate cases in the history of New Hampshire since it was adopted in 1784 that I could locate. It has never successfully been effective to protect the rights of anyone invoking it. (It is possible that it has been argued in a trial court on a jury nullification theory, but such cases wouldn't produce reported cases as criminal acquittals cannot be appealed by the government.) The cases, and the pertinent part of each ruling, are as follows:
Question two inquires whether HB 536 "violate[s] the constitutional
provision that government is instituted for the common benefit,
protection, and security, of the whole community, and not for the
private interest or emolument of any one man, family, or class of men
under part I, article 10 of the New Hampshire constitution?" We answer
this question in the negative.
Part I, Article 10 provides:
Government being instituted for the common benefit, protection, and
security, of the whole community, and not for the private interest or
emolument of any one man, family, or class of men; therefore, whenever
the ends of government are perverted, and public liberty manifestly
[746 A.2d 987] endangered, and all other means of redress are ineffectual, the people
may, and of right ought to reform the old, or establish a new
government. The doctrine of nonresistance against arbitrary power, and
oppression, is absurd, slavish, and destructive of the good and
happiness of mankind.
This provision of our constitution has commonly been regarded as enumerating a citizen's right to reform an ineffectual or
manifestly corrupt form of government. See City of Claremont v.
Craigue, 135 N.H. 528, 533-34, 608 A.2d 866, 869 (1992); Nelson v.
Wyman, 99 N.H. 33, 50, 105 A.2d 756, 770 (1954). We have recognized
for over one hundred years, however, that this provision is imbued
with "[t]he principle of equality [that] pervades the entire
constitution," State v. Pennoyer, 65 N.H. 113, 114, 18 A. 878, 879
(1889), and as such, Article 10 provides support for the maxim that
"[t]he law cannot discriminate in favor of one citizen to the
detriment of another." Id. Thus, Part I, Article 10 has been
recognized as providing for more than a "right of revolution"; rather,
it is one of many provisions in our Bill of Rights that forms the
basis for a citizen's right to equal protection. See, e.g., Town of
Chesterfield v. Brooks, 126 N.H. 64, 67, 489 A.2d 600, 602 (1985)
(zoning ordinance violated equal protection rights guaranteed by Part
I, Articles 1, 2, 10, 12, and 14); Gazzola v. Clements, 120 N.H. 25,
29, 411 A.2d 147, 151 (1980) (statute violated equal protection rights
guaranteed by Part I, Articles 1, 10, 12, and 14).
Pursuant to the principle of equality inherent in Article 10, this court found that the raising of tax revenue to aid an electric
utility would violate Part I, Article 10's mandate that government is
"instituted for the common benefit ... of the whole community, and not
for the private interest or emolument of any one man, family, or class
of men." Opinion of the Justices, 88 N.H. 484, 489, 190 A. 425, 429
(1937).
Aid to a utility is forbidden except in protection of the public
welfare and interest. And the protection must be in a needed service
furnished the public by the utility as a condition of the aid. Without
the condition the protective principle is inapplicable. Unconditional
aid is not a proper charge of government to be met by the taxpayers.
144 N.H. 382
Id. at 488-89, 190 A. at 428. The court noted that the existing public
utilities already provided sufficient power to service State
customers, and that any additional supply was sent out-of-state. Id.
at 489, 190 A. at 429. The court reasoned that because the
transmission of additional electric energy outside the State served no
public purpose, and thus the need for public funds for additional
development was a private, not public, purpose, the proposed aid was
unconstitutional. Id.
In this case, however, the legislature is proposing to create a tax exemption, rather than directly raising tax revenue to subsidize
private purposes. Cf. Opinion of the Justices (Mun. Tax Exemptions for
Indus. Constr.), 142 N.H. at 101, 697 A.2d at 124 (finding
determinative under Part II, Article 5 that there was not direct
expenditure, but rather a uniform exemption of state-wide
application). Moreover, even if one views an exemption as simply a
form of direct grant, see Eyers Woolen Co. v. Gilsum, 84 N.H. 1, 9,
146 A. 511, 515 (1929) (exemptions are "in effect, a compulsory
payment of money, by those who bear their shares of the common burden,
to the privileged person who does not bear his share"), the public
benefit gained by this legislation is sufficient to render it
constitutional. Our constitution does not require absolute equality of
burden in the case of exemptions. "The resulting inequality or
discrimination against unexempted property is not fatal to the
constitutionality of the exemption," Opinion of the Justices, 87 N.H.
490, 491, 178 A. 125, 126 (1935), provided "it advances a public
purpose," Opinion of the Justices, 95 N.H. at 550, 65 A.2d at 701, and
is "properly within the legislature's discretion in acting for the
welfare of the state," Opinion of
[746 A.2d 988] the Justices, 87 N.H. at 491, 178 A. at 126. As stated
above, the benefit to be gained by HB 536 is increased competition and
customer choice, and not necessarily the need for additional power.
Further, deregulation of the electric utility industry is "properly
within the legislature's discretion in acting for the welfare of the
state," id., and it is proper for the legislature to enact exemptions
that promote the economic well-being of the State, see Opinion of the
Justices (Mun. Tax Exemptions for Indus. Constr.), 142 N.H. at 100,
697 A.2d at 123. Accordingly, the tax exemption is properly granted
under the legislature's "constitutional power to provide for the
common benefit, protection and security," Opinion of the Justices, 88
N.H. at 487, 190 A.2d at 428, and does not violate Part I, Article 10.
To the extent that question two implicates additional equal protection guarantees under Part I, Article 10, cf. Gazzola, 120 N.H.
at 29, 411 A.2d at 151, we conduct our analysis concurrently with the
next question you posed; namely, whether HB 536 improperly classifies
taxable property such that the burden of taxation is inequitably
distributed, cf. Rosenblum v. Griffin, 89 N.H. 314, 320-21, 197 A.
701, 706 (1938) (constitutional issue of classification decided under
Part I, Article 10). For the reasons stated below, this part of
question two is answered in the negative.
It is also strongly urged by the plaintiff that the Legislature of
this state cannot proscribe activities looking to the overthrow of
government by force or violence because of Article 10 of the Bill of
Rights which provides, in part, that ‘whenever the ends of government
are perverted, and public liberty manifestly endangered, and all other
means of redress are ineffectual, the people may, and of right ought,
to reform the old, or establish a new government. The doctrine of
nonresistance against arbitrary power, and oppression, is absurd,
slavish, and destructive of the good and happiness of mankind’. With
this interpretation we cannot agree. The right reserved to the people
by this Article is not such a broad and unlimited right of
insurrection and rebellion as to permit any group which is
dissatisfied with existing government to lawfully attempt at any time
to overthrow the government by force or violence. It is not claimed by
the plaintiff that ‘the ends of government’ are now ‘perverted’, ‘public liberty manifestly endangered, and all other means of redress *
* * ineffectual’ but it is only when those conditions prevail that the right to resist and to ‘reform the old, or establish a new
government’ exists. The right possessed by the people of this state as
a protection against arbitrary power and oppression cannot be utilized
to justify the violent overthrow of government when the adoption of
peaceful and orderly changes, properly reflecting the will of the
people, may be accomplished through the existing structure of
government.
99 N.H. 51
Dennis v. United States, 341 U.S. 494, 501, 549, 71 S.Ct. 857, 95
L.Ed. 1137. To require a government representative of the people, in
the face of preparations for revolution by force, to refrain from
acting to curb the [105 A.2d 771] outbreak of violence and to confine
itself solely to holding answerable those persons who have committed
crimes of violence and terrorized the community in the name of
revolution must result in anarchy. Dennis v. United States, supra, 341
U.S. 501, 71 S.Ct. 857. Article 10 was not intended to accomplish this
result.
So far as the circumstances of this case have required an examination of the 1951 act, we conclude that it is constitutional
upon its face, so as to furnish a basis for the resolution of 1953.
