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Bar Journal - March 1, 2000

The Law in Court - a Guide to Selected Principles of NH Statutory Construction


The New Hampshire Supreme Court is "the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole."1 That rather sweeping statement tersely summarizes the role of the judiciary in interpreting enactments of the legislative branch of government. As is the case in other jurisdictions, principles have emerged in New Hampshire which provide a set of rules whereby this daunting task of statutory interpretation can be exercised with some degree of consistency.

This article reviews selected New Hampshire Supreme Court decisions to ascertain guidelines for determining and applying certain principles of statutory interpretation used by our Court in a variety of contexts. As such, this article does not purport to be a comprehensive review of all canons of statutory construction, a task far beyond the scope envisioned for a Bar Journal article. In particular, this article does not address punitive and criminal laws, and most cases reviewed are of fairly recent vintage. However, it is hoped that the rules and citations set forth in the article will be of assistance to lawyers faced with the task of applying statutes or convincing a court to adopt a particular interpretation.

The subject matter is presented in a manner similar to that which is used in statutory reference manuals such as Sutherland Statutory Construction.2


The role of the judiciary in interpreting and applying statutory law has been addressed in many cases, not the least of which have been the most recent school funding decisions.3

The general rule, of course, is that cited at the outset of this article, namely that "(q)uestions of statutory interpretation present this Court with questions of law of which we are the final arbiter."4 The many legal principles inherent in that simple phrase and the guideposts that are used by the Courts in exercising this role in a variety of contexts are the focus of the remainder of this article.


A. Separation of Powers

1. Judicial, Legislative, and Executive

The three branches of government upon which our legal traditions are based have come under judicial scrutiny in a number of instances. Of late, the Supreme Court, following its tendencies in several areas of the law, appears to be softening some of the hard and fast lines that had been adopted in prior decisions. Thus, the Court stated in a 1999 decision concerning the role of the Compensation Appeals Board as follows:

Despite Part I, Article 37’s admonition on the separation of powers, we have recognized that the doctrine does not require an absolute division of powers, but a cooperative accommodation among the three branches of government, . . . and contemplates some overlapping and duality in the division as a matter of practical and essential expediency. [T]here is a region of authority, alternative and concurrent, the boundaries of which are fixed by no final rule [citations omitted].5

At the same time, the Court has set out a boundary on its own functions into which the legislative function may not intrude. Thus, "because the providers of court security play an integral role in the most fundamental function of any court, the adjudicatory function, it is an improper encroachment on the judiciary’s power for the legislature to mandate the provider of court security. . . . The Separation of Powers Clause compels limits to encroachments by one branch into the inherent and internal affairs of another branch."6

At the core of some of the disputes in the school funding issues in which the legislative, executive, and judicial branches have recently found themselves, is the role of the judiciary in overseeing the State’s educational funding system. The Court views its role in this controversy as follows:

We observe that the only way for an orderly solution to occur is for legislation implementing such a solution to be enacted. For this to occur our co-equal branches of government must act. The Separation of Powers Clause of the State Constitution, Part I, Article 37, prevents one branch of government from encroaching on the power of another. . . . Here, however, we emphasize the final part of that provision, which speaks of "that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity." N.H. Const. pt. I, art. 37. We have acted in accordance with our duty to interpret the State Constitution to declare the system of financing public elementary and secondary education in this State unconstitutional. The Legislature during the past eleven months has engaged in rigorous and spirited debate, which is essential to a healthy democracy. Now we look to the Governor and the Legislature to put into effect a constitutional financing system so that together, in a bond of unity and amity, THE STATE OF NEW HAMPSHIRE, see Pt. II, Art. 1, may move forward to constitutionally educate our children in the next millennium [citations omitted].7

In light of the resistance of some individuals and communities to the legislatively imposed solution, it has been suggested (at the time that this article is being written) that injunctive relief or self-help (withholding of payments) might be considered or that the Legislature might react in other ways to these decisions. The Court stated the following rule regarding prospective relief against the legislative imposition of retaliatory legislation:

Finally, the plaintiffs request injunctive relief. In view of the repeal of former RSA 260:53, the plaintiffs no longer seek an injunction against the collection of taxes under that statute. Instead, they seek an injunction against "the imposition or collection of retaliatory taxes pursuant to any authority." This request rests upon purely speculative grounds and, moreover, raises serious issues regarding the separation of powers. We are confident that the State will abide by the consequences of this decision, and we see no reason to grant the plaintiffs’ request.8

2. Delegated Powers

The legislative powers of government in New Hampshire are viewed as delegated powers. In the first instance, the legislative power is delegated, through the State Constitution, by the people to their elected representatives in the General Court. A by-product of this delegation is that the delegated legislative power may be exercised only for a constitutional, public purpose as stated in Part II, Article 5 of the New Hampshire Constitution.9

In a similar manner, the General Court may delegate legislative power to municipalities under the so-called "Dillon’s Rule." In the first instance, of course, any delegation of legislative power must comport with the same limitation on legislative power imposed on the General Court.10 Secondly, at least unless and until the home rule constitutional amendment passed during the 1999 legislative session is approved by the voters, municipal exercise of legislative power is limited to that expressly delegated or implied by such an express delegation.11

The delegation of legislative authority or, more properly, quasi-legislative authority to administrative agencies is another separation of powers issue but is dealt with in this article in the specific heading below.

In concluding a review of the separation of powers doctrine, it is important to keep in mind the nature of a challenge to a statutory scheme and to make sure that the proper issues are raised for adjudication.

Because the petitioner seeks redress or compensation for his bodily injury pursuant to the Workers’ Compensation Law, a purely statutory right, . . . and does not challenge the constitutionality of the workers’ compensation scheme in its totality, . . . we conclude that the act’s compelled adjudication of the underlying facts by an administrative body does not offend the separation of powers doctrine embodied in Part I, Article 37. Compare Pomponio, 106 N.H. 273 (statute authorizing commissioner to determine entitlement to statutory unemployment benefits, including resolution of factual disputes, did not violate separation of powers doctrine) with Opinion of the Justices, 87 N.H. 492, (proposed statute that would empower commissioner to decide motor vehicle common law negligence claims would violate separation of powers doctrine) [citations omitted].12

The Court has gone back to basic legal traditions to examine the limits and nature of delegations of legislative power:

The first rule is rooted both in the philosophy of John Locke — because the power to legislate is a delegated power from the people, the Legislature has no power to delegate it to anyone else, see People v. Barnett, 176 N.E. 108, 110 (Ill. 1931) — and in the separation of powers doctrine — the power to legislate is an exclusive power granted to the Legislature, see Pursley v. City of Ft. Meyers, 100 So. 366, 367 (Fla. 1924). "[W]hile the Legislature may not divest itself of its proper functions, or delegate its general legislative authority, it may still authorize others to do those things which it might properly, yet cannot understandingly or advantageously do itself."

The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.13

B. Judicial Review

At times, litigation may involve the distinction between the determination of common law principles and statutory interpretation by the use of judicial review. The former is a function solely of the judiciary and is not within the legislative province,14 though clearly the legislative power does extend to enactments which alter the common law as determined by the judicial branch. [See discussion below on principles of construction with reference to common law.]

Although the Court is clearly the sole arbiter of the meaning of a statute, the judiciary does grant some deference to those charged with administering the law in the first instance. Where an agency is charged with fact-finding, for instance, facts which are properly found are not overturned without a substantial basis. [See also discussion below on delegation to administrative agencies.]

In similar fashion, a municipal land use board (planning board or zoning board of adjustment) is often required to apply the law in the first instance and to make factual findings. Although by statute and by common law the factual findings made by a zoning board of adjustment are deemed prima facie valid,15 the Court’s powers are not so circumscribed as to matters involving interpretation of law or remedies to be imposed. For example, in this State’s landmark "affordable housing" case, the Supreme Court set forth the following principles:

The trial court’s order declared the Chester Zoning Ordinance invalid and unconstitutional; as a result, but for this appeal, the town has been left "unzoned." To leave the town with no land use controls would be incompatible with the orderly development of the general community, and the court erred when it ruled the ordinance invalid. It is not, however, within the power of this court to act as a super zoning board. "Zoning is properly a legislative function, and courts are prevented by the doctrine of separation of powers from invasion of this field."

However, in fashioning a remedy, the Court continued:

The town’s argument that the specific relief granted to plaintiff Remillard violates the separation of powers provision found in part I, article 37 of the New Hampshire Constitution, to the extent that the trial court exercised legislative power specifically delegated to the local zoning authority, is without merit. The rule we adopt today does not produce this result. See Opinion of the Justices, 121 N.H. 552, 556, 431 A.2d 783, 785-86 (1981) ("complete separation of powers would interfere with the efficient operation of government . . . consequently there must be some overlapping of the power of each branch"). This rule will permit the municipality to continue to control its own development, so long as it does so for the general welfare of the community. It will also accommodate the construction of low- and moderate-income housing that had been unlawfully excluded.16

Adopted by the voters in 1984, the so-called anti-mandate article of the New Hampshire Constitution (Part I, Article 28-a) limits the Legislature’s ability to impose new obligations upon local government. The Supreme Court, however, has taken a practical view of this article as it applies to separation of powers and the judicial review function:

Furthermore, article 28-a contemplates a set of circumstances whereby local government can reject a particular State mandate by failing to approve local funding. Thus, if we were to interpret article 28-a as applying to acts of the judiciary, we would necessarily clothe local government with the authority to reject the decisions of the judiciary at their own election, thereby reducing the doctrine of separation of powers to a nullity. This we shall not do.17

C. Levels of Government: Local, State and Federal

A concept related to the constitutional separation of powers is the allocation of governmental power to local, State and Federal governments. While decisions as to the allocation of power between the State and the Federal governments are often within the sphere of Federal courts, the N.H. Supreme Court has addressed Federal powers and State and local governments on several recent occasions.18

The subject of State and local governmental powers has been addressed on numerous occasions by the N.H. Supreme Court. Once again, the home rule amendment vesting powers of self-government in cities and towns, if adopted, will certainly alter the traditional roles of State and local government, but the Court has followed consistent patterns in interpreting and applying statutes affecting the powers exercised by New Hampshire municipalities.

The familiar and oft-stated rule is that New Hampshire municipalities possess only those powers that are delegated to it by an express act of the Legislature and those powers that are reasonably implied by such an express grant.19

The scope of this rule affects many aspects of municipal-state relations. For example, since:

acts under a delegated power are the acts of the principal, the principal cannot confer upon his agent a power which he does not himself possess. Whatever by-laws and ordinances the legislature can lawfully authorize towns and cities to adopt, it has the constitutional power to enact directly . . . The legislature may at any time resume the delegated powers . . . If the legislature is by the constitution forbidden to enact such laws, it cannot authorize towns and cities to enact them. It cannot confer a power it does not itself possess [citations omitted].20

While the limitation upon the exercise of municipal powers may have its detractors, the doctrine does have positive effects upon municipal exposure to liability. "To permit suit against a municipality for the exercise of its discretionary functions would offend our system of separation of powers" and "(t)o accept a jury’s verdict as to the reasonableness and safety of a plan of governmental services and prefer it over the judgment of the governmental body which originally considered and passed on the matter would be to obstruct normal governmental operations."21

Another element of the current scheme is the role that the judiciary plays in determining when State legislation preempts local control. It is fair to state that the Legislature often appears to find it inappropriate to enact direct statements of intent to preempt local control or power, leaving it to the courts to do so. The courts have therefore found it necessary to establish a set of guidelines for determining when local powers are preempted.

For example, in examining the extent to which municipalities may regulate liquor sales, the Court applied standard rules. The preemption doctrine flows from the principle that municipal legislation is invalid if it is repugnant to, or inconsistent with, State law. Municipal legislation is therefore preempted if it expressly contradicts State law or runs counter to the legislative intent underlying a statutory scheme.22

Since the Legislature does not often include express statements of preemption of local powers, the courts are left to determine the scope of preemption based on legislative intent. The Court has formulated one preemption test by viewing the regulatory scheme for local control in contrast to State action. The enactment of a detailed and comprehensive State regulatory scheme governing a particular field often demonstrates the State’s intent to preempt that field by placing exclusive control in the State’s hands. In such circumstances, municipal legislation dealing with that field "runs counter" to the State statutory scheme and is preempted.23

In other cases, preemption may be based upon a policy that views local control or regulation as potentially interfering with State policy or the ability of the State to carry forward its goals utilizing entities that, when carrying out private functions, are subject to local regulatory control. These include functions such as community based developmental disabilities facilities24 and State commercial functions such as the Port Authority.25

Preemption may also be found where the exercise of local control in a variety of ways could frustrate a statewide scheme and where the Court finds that the State might possess particular technical capability and expertise.26


When appropriate, the Supreme Court may inquire into the legislative process as an aid in ascertaining legislative intent. As the uses to which the many facets of the legislative process could be put are endless, the Court has adopted guidelines as to when it is appropriate to use these secondary sources of information.

A. Use of Legislative History

As a starting point, the general rule regarding the use of legislative history is that the Court will not look to legislative history to "modify the meaning of a statute that is plain on its face."27

It is, however, appropriate to consult legislative history to aid in the Court’s analysis where "the statutory language is ambiguous or where more than one reasonable interpretation exists." 28

1. Testimony of Bill Drafters and Similar Evidence

It may seem that the views of persons who write legislation may be helpful in interpreting what they have written. The Court, consistent with the views in many other jurisdictions, finds that position to be at odds with proper statutory interpretation. The Court has thus recognized that there is no necessary correlation between the understanding and intent of a drafter and the understanding and intent of the Legislature. Further, the drafter’s views may be unreliable because of an inclination to testify as to what the drafter intended the statute to say rather than to give an objective analysis of what the statute actually says.29 Thus, the Court will hold that personal recollections of the drafter of a bill should not be considered for statutory interpretation purposes.

Whether a Court may consider opinions expressed by drafters in other contexts, e.g. a Bar Journal article, was not directly answered in the preceding case, since the State did not object when it was proposed to introduce the article into evidence.

On the other hand, the Court has not hesitated to consider some other sources of information which it finds relevant to the task of determining legislative intent. For example, it cited a memorandum to the Public Employee Labor Relations Board from the attorney assigned from the House Speaker’s staff to assist the conference committee in negotiating and drafting RSA 273-A:12 in ascertaining whether that statute required submission of a fact finder’s report to the legislative body of a school district for a non-binding vote.30 The Court noted that this "unpublished memorandum" was "on file under legislative history with the PELRB" and the memorandum stated the statute’s purpose was to broaden participation in impasse negotiations and to make the parties vulnerable to "the publicity that will no doubt attend an impasse."

2. Administrative Interpretation

Another source of information that may be considered by the Court is the administrative interpretation of a statute by the agency charged with its implementation, but only where the statute is of doubtful meaning. In such a case, the "long-standing practical and plausible interpretation applied by the agency responsible for its implementation, without any interference by the legislature, is evidence that the administrative construction conforms to the legislative intent."31 However, even if deference to administrative interpretation may be given in some instances, an administrative interpretation is not controlling or persuasive where it is plainly incorrect,32 nor will it be controlling where the practice attempts to correct inartfully drafted legislation.33

B. Examples of the Use of Legislative History

When it is appropriate to consult legislative history, the Court may cite legislative journals and even floor debate, although the Court has stated its reluctance "to give too much weight to the comments offered by proponents of bills."34

Though they may not always be controlling, statements of legislative findings and purpose may also be cited to support the court’s view of the law.35

Other elements of legislative history which may serve to illuminate a statute’s meaning include the wording of predecessor statutes36 and the prior construction placed on statutory language.37 The Court has also advised the Legislature that, if the Legislature disagrees with the Court’s interpretation of a statute, it may always clarify its intent.38


As a general rule, legislation will apply prospectively. In some instances, however, the Court will apply a statute retrospectively or in a manner that provides relief to the party who has brought a law suit that effects a significant change in prior practice.

In determining whether a statute may be applied retrospectively, when the Legislature is silent as to whether a statute should apply prospectively or retrospectively, the Court’s interpretation turns on whether the statute affects the parties’ substantive or procedural rights. The general rule is that where a law affects substantive rights and liabilities, it is presumed to apply only to future causes of action. This presumption, however, reverses when the statute is determined to affect only the procedural or remedial rights of a party. Thus, unlike statutes affecting substantive rights, those affecting procedural or remedial rights are usually deemed to apply retroactively to those pending cases which, on the effective date of the statute, have not yet gone beyond the procedural stage to which the statute pertains.39

In New Hampshire’s landmark affordable housing decision,40 the Court was faced with another aspect of retroactivity, i.e. whether the plaintiff was entitled to a "builder’s remedy," and the Court discussed the circumstances when this would be appropriate.41


An examination of canons of statutory interpretation might start with a caveat that was sometimes expressed by those enrolled in a legislation course during law school, i.e., for every canon of statutory construction there is an equal and opposite canon. A cynical view of judicial guidance and policy might hold that principles of interpretation appear to arise when necessary to support the result sought by the interpreter. A more scholarly approach suggests that the Court can fathom differences between the principles and the circumstances in which they are applied. The author leaves it to readers to apply these concepts further. Nonetheless, the New Hampshire Supreme Court does appear to have created a body of organized principles to guide one in applying and interpreting statutory law.

A. Meaning of Words

A cardinal rule of statutory interpretation is as follows:

"The first and most elementary rule of construction is that it is to be assumed that the words and phrases are used in their technical meaning, if they have acquired one, and in their popular meaning if they have not, and that the phrases and sentences are to be construed according to the rules of grammar; and from this presumption it is not allowable to depart, unless adequate grounds are found, either in the context or in consequences which would result from the literal interpretation, for concluding that that interpretation does not give the real intention of the legislature."42

Similarly, if words are defined in a statute, that is their meaning. If the words are not defined, the Court will ascribe to them their plain and ordinary meanings.43

The Court has also stated its practice when construing technical terms as follows:

We will follow common and approved usage except where it is apparent that a technical term is used in a technical sense. RSA 21:2. If the statute is unambiguous when so viewed, there is no justification for judicial modification.44

B. Literal Interpretation

The Court will generally interpret a statute using a literal interpretation, but there are exceptions. A literal interpretation will not be used when doing so "removes it from the context of the whole" statutory scheme45 or when a literal interpretation would lead to an absurd result.46

In a similar vein, the Court’s general rule holds that it will not consider what the Legislature might have said, nor will it add words to a statute which the Legislature has not actually enacted.47 At the same time, the Court is not hesitant to premise an interpretation on the fact that the Legislature might have worded a statute differently.48

The Court has generally stated that its role in ascertaining legislative intent is as follows:

"[L]egislative intent is to be found not in what the legislature might have intended, but rather, in the meaning of what it did say."49

C. Context; Wording; Results

In line with a cardinal rule of statutory construction, the Court will also construe statutes dealing with the same subject matter consistently, if possible, so as to "best effectuate the statutes’ legislative purpose."50 Statutes are to be read as a whole, in context, and all words should be given effect and meaning.51 Thus, statutes are not to be interpreted by examining isolated words and phrases.52 Words are not to be added to a statute nor taken away, as "the legislature is presumed not to have used superfluous or redundant words."53

Statutes are to be interpreted, when possible, in a manner that will result in the statute being constitutional, but the meaning of a statute that is plain on its face cannot be modified.54

The role of the Court is not to judge the wisdom or the fairness of the law as it is written.55 The Court, however, may properly be concerned with public policy:

Our conclusion is compelled by at least two considerations. First, the purpose of the current use taxation statute is to preserve open space and deter intensive use. If, therefore, an owner desires to intensify the use of his land to the maximum extent allowable under local ordinances, he also should be prepared to accept the burden of tax on the full value of the developed land. Permitting current use treatment for land used to meet local density requirements, in contrast, would encourage, rather than discourage, intensive use. Second, the town should not be required to subsidize the tax on the open space land when that land has been used to increase the extent of a development’s market value. Nor should the town be required to subsidize the fractional ownership interests of the subsequent common owners.56

Likewise, the Court may properly consider the purpose of legislation and the "evil" or "mischief" that the legislation is intended to address.57

D. Prior Interpretation

The Legislature is presumed to be aware of both judicial and administrative interpretation of laws. Thus, when the Legislature reenacts a statute on which a practical construction has been placed by the courts, that reenactment constitutes a legislative adoption of that longstanding construction,58 unless weighty evidence can be found that such is not the Legislature’s intent.59

While statutes in derogation of the common law are usually to be interpreted narrowly,60 a legislative enactment closely following upon the heels of a judicial decision may constitute evidence of an express intention to change the law, since the Legislature is presumed to be aware of the common law when it enacts legislation.61

Administrative application of a statute may result in application of the "administrative gloss" doctrine. Under this rule, a history of administrative interpretation over some years, coupled with noninterference by the Legislature, may be used to assist in judicial interpretation, but such administrative interpretation must be within some reasonable sphere of possible meaning of the statute.62

On the other hand, while the Court will ordinarily give deference to administrative interpretation of a statute, such an interpretation is not controlling where it is plainly incorrect.63


A. Mandatory/Directory Statutes

Generally, the word "shall" in a statute is given mandatory effect, while the word "may" is a used in a directory sense. There are occasions, however, when the Court will find it necessary to examine legislative intent to ascertain the context in which "shall" or "may" is used.64

B. Remedial Laws

Though it may not always be a simple task to ascertain whether a statute has a remedial purpose, canons of construction suggest that these types of statutes ought to be interpreted liberally to effect their purpose. Examples have included workers’ compensation laws.65

Remedial laws may be applied retrospectively, and this application does not contravene the constitution because the law affects only a remedy and as such would not be oppressive or unjust.66

C. Delegation of Authority to Administrative Agencies

The constitutional doctrine of separation of powers limits the degree of rule making authority which the Legislature may delegate to an administrative agency to that which is necessary to "fill in the details" of a statute in order to effectuate its purpose. The delegating statute must contain some standards or general policy to guide the administrative agency in exercising its rule making authority. [See discussion supra at note 13.]

The retention of legislative control over rule making has been the subject of Court opinions in other jurisdictions with varying results. Here, our Court has found that the Legislature may properly condition the exercise of that delegated authority upon its approval by a legislative entity.

Far from violating the separation of powers doctrine, the proposed statute actually buttresses the underlying delegation of rule making authority by restricting the extent to which the executive branch can engage in unilateral lawmaking. For these reasons, the creation of a legislative veto is not per se unconstitutional.67

D. Taxation

Statutes imposing taxes are sometimes subjected to particular scrutiny in various jurisdictions. Our Court has summarized its role with regard to interpretation of tax statutes as follows:

The department attempts to counter the taxpayer’s literal interpretation argument with a line of cases that it asserts prohibits us from strictly construing a tax statute. . . . We do not read these cases as preventing us from literally interpreting an unambiguous tax statute. These cases merely caution us not to construe tax exemption laws with rigorous strictness as a matter of course [citations omitted].68


A. Reference to Other Statutes and Areas of Law

Where several statutes deal with the same subject matter, the Court will construe them to give effect to the legislative purpose for their enactment.69

Laws of other jurisdictions may occasionally find their way into Court opinions in an effort to assist in interpretation of this State’s laws, provided the laws are sufficiently similar.70

In attempting to define "dependency" as used in the workers’ compensation statutes, the Court was requested to look to analogies in domestic relations law and it noted:

Probably the most that can be said about the application of domestic relations law to compensation claims is that, because of the beneficent character of the legislation, established definitions and rules will usually be stretched as far as precedents will allow, to take care of meritorious cases of dependency.71

B. Bar Journals, Learned Treatises

As noted above, the Court has permitted the use of Bar Journal articles as an aid in statutory interpretation. Similarly, it allows law review articles and treatises to be used as well.72 In addition to the standard multi-volume Sutherland Statutory Construction, other works on statutory writing and interpretation may also be consulted.73


As noted at the outset of this article, its purpose was not to present a comprehensive review of all of the canons and principles of statutory construction used by the New Hampshire Supreme Court. What has been presented is, instead, intended to provide a sampling of how the Supreme Court has addressed a number of subjects related to the concept of statutory interpretation and the practical and theoretical application of these principles. This brief survey should be sufficient to convince the reader that examination of our Court’s decisions is a necessary element in statutory research and that sole reliance upon theoretical treatises may not always be appropriate.


1. State v. Ferguson, 141 N.H. 438 (1996) at 439.
2. C. Sands, Statutes and Statutory Construction (rev. 4th ed. 1984).
3. Claremont School District v. Governor, 142 N.H. 462 (1997); 143 N.H. 154 (1998); and ___ N.H. ___ (October 15, 1999).
4. Pike Industries v. Hiltz Construction, 143 N.H. 1 (1998).
5. McKay v. New Hampshire Compensation Appeals Board, ___ N.H. ___ (July 8, 1999) 732 A.2d 1025.
6. Petition of Mone, 143 N.H. 128 (1998).
7. Claremont School District v. Governor, 143 N.H. 154 (1998) at 160.
8. Private Truck Council of America v. State, 128 N.H. 466 (1986) at 477.
9. Opinion of the Justices, 103 N.H. 281 (1961).
10. State v. Paille, 90 N.H. 347 (1939).
11. Girard v. Town of Allenstown, 121 N.H. 268 (1981).
12. McKay v. New Hampshire Compensation Appeals Board, supra.
13. Opinion of the Justices, ___ N.H. ___ (March 11, 1999), 725 A.2d 1082.
14. Purdie v. Attorney General, ___ N.H. ___ (June 24, 1999), 732 A.2d 442; Cloutier v. State Milk Control Board, 92 N.H. 199 (1942).
15. RSA 677:6; Rowe v. North Hampton, 131 N.H. 424 (1989). In an appeal of a planning board decision, the board is upheld unless the court find it to be unreasonable or contrary to law, RSA 677:15, Durant v. Dunbarton, 121 N.H. 352 (1981).
16. Britton v. Town of Chester, 134 N.H. 434 (1991).
17. N.H. Munic. Tr. Workers’ Comp. Fund v. Flynn, Comm’r., 133 N.H. 17 (1990)

573 A.2d 439, P. 27.
18. Recent cases where the N.H. Supreme Court did address Federal-State relations include Wilkie v. Silva, 141 N.H. 461 (1996); Tebbetts v. Ford Motor Co., 140 N.H. 203 (1995); and Wenners v. Great State Beverages, 140 N.H. 100 (1995).
19. Girard v. Town of Allenstown, supra, note 11.
20. State v. Griffin, 69 N.H. 1 (1896).
21. Schoff v. City of Somersworth, 137 N.H. 583 (1993) at 589.
22. Casico v. City of Manchester, 142 N.H. 312 (1997) at 312.
23. Ibid.
24. Northern N.H. Mental Health Hous. v. Town of Conway, 121 N.H. 811 (1981) and Region 10 Client Mgt., Inc. v. Town of Hampstead, 120 N.H. 885 (1980).
25. City of Portsmouth v. John T. Clark & Son, Inc., 117 N.H. 797 (1977).
26. Town of Pelham v. Browning Ferris Indus., 141 N.H. 355 (1996); Stablex Corporation. v. Town of Hooksett, 122 N.H. 1091 (1982).
27. State Employees’ Assoc. v. State, 127 N.H. 565, 568 (1986).
28. K & J Assoc. v. City of Lebanon, 142 N.H. 331 (1997).
29. Bradley Real Estate Trust v. Taylor, Commissioner, 128 N.H. 441 (1986), citing R. Dickerson, The Interpretation and Application of Statutes 156 (1975).
30. Appeal of Derry Educ. Assoc., 138 N.H. 69 (1993).
31. Appeal of Westwick, 130 N.H. 618 (1988) at 621, citing State Employees’ Assoc. v. State, supra at 569 and [quoting Hamby v. Adams, 117 N.H. 606 (1971)].
32. Appeal of Cote, ___ N.H. ___ (August 6, 1999), citing Petition of Markievitz, 135 N.H. 455 (1992).
33. Arnold v. City of Manchester, 119 N.H. 859 (1979).
34. Appeal of Routhier, ___ N.H. ___ (March 5, 1999). Also, "(a)t the outset, we note some reservation in imputing too much weight to comments of proponents of bills offered in legislative committee hearings, except possibly to confirm a suspected meaning. See Dickerson, Statutory Interpretation: Dipping into Legislative History, 11 Hofstra L. Rev. 1125, 1131 (1983)." In re Estate of Martin, 125 N.H. 690 (1984) at 692.
35. State v. Cobb, ___ N.H. ___ (June 24, 1999).
36. Trovato v. Deveau, ___ N.H. ___ (April 21, 1999); Chagnon v. Union-Leader Co., 104 N.H. 472 (1963); Del Norte, Inc. v. Provencher, 142 N.H. 535 (1997).
37. Appeal of Gelinas, 142 N.H. 250 (1997).
38. In re: Public Utilities Commission Statewide Electric Utilities Restructuring Plan, ___NH ___, (December 23, 1998).
39. State v. Hamel, 138 N.H. 392 (1994) at 394.
40. Britton v. Town of Chester, supra, note 16.
41. "Builder’s remedy" permitting plaintiff who had successfully challenged the legality of municipal zoning ordinance’s restrictions on development of low- and moderate-income housing to proceed with his proposed development was appropriate, both to compensate plaintiff who had invested substantial time and resources over thirteen-year period in pursuing the litigation, and as most likely means to assure low- and moderate-income housing would actually be built, Ibid.
42. Cate v. Martin, 70 N.H. 135 (1899) at 137.
43. State v. Woods, 139 N.H. 399 (1995).
44. Appeal of Public Serv. Co. of N.H., 125 N.H. 46 (1984) at 52.
45. State v. Johnson, 134 N.H. 570 (1991) at 576.
46. Atwood v. Owens, 142 N.H. 396 (1997).
47. State v. Harnum, 142 N.H. 195 (1997); Brewster Academy v. Wolfeboro, 142 N.H. 382 (1997).
48. Catucci v. Lewis, 140 N.H. 243 (1995); Appeal of Astro Spectacular, 138 N.H. 298 (1994); Appeal of the Ribblesdale, Inc., 128 N.H. 370 (1986).
49. Psychiatric Inst. of America v. Mediplex, 130 N.H. 125 (1987).
50. Galloway v. Chicago-Soft, Ltd., 142 N.H. 752 (1998); Appeal of Derry Education Assoc., 138 N.H. 69 (1993).
51. Legislature is presumed not to have used words as mere "surplusage," Blue Mountain Forest Ass’n v. Town of Croydon, 117 N.H. 365 (1977).
52. Appeal of Ashland Electric Department, 141 N.H. 336 (1996); Sprague Energy Corporation v. Town of Newington, 142 N.H. 804 (1998).
53. N.H. Insurance Guaranty Assoc. v. Pitco Frialator, 142 N.H. 573 (1998); See also Appeal of Hickey, 139 N.H. 586 (1995).
54. State v. Johnson, 134 N.H. 570 (1991); In re Poulin, 100 N.H. 458 (1957).
55. Arthur Whitcomb, Inc. v. Town of Carroll, 141 N.H. 402 (1996).
56. Dana Patterson, Inc. v. Town of Merrimack, 130 N.H. 353 (1988) at 356.
57. Appeal of Town of Newmarket, 140 N.H. 279 (1995).
58. Thibeault v. Campbell, 136 N.H. 698 (1993); Appeal of Simplex Wire & Cable Co., 131 N.H. 40 (1988).
59. Appeal of Gelinas, 142 N.H. 250 (1997).
60. Lorette v. Peter-Sam Inv. Properties, 140 N.H. 208 (1995). This "rule" on occasion has been circumscribed by the Court as it has stated "(w)hatever may have once been the rule of strict construction of statutes in derogation of common-law principles, courts today are more disposed to adopt an attitude of ascertaining fairly and reasonably what statutes mean when their meaning is in doubt," Boulia-Gorrell Lumber Co. v. Company, 84 N.H. 174 (1929). However, the Court has also recently affirmed its general view by stating "we will not construe a statute as abrogating the common law unless the statute clearly expresses such an intention," Hill v. Dobrowolski, 125 N.H. 572 (1984) at 575.
61. Appeal of Hickey, supra, note 53; In re Guardianship of Raymond E., 135 N.H. 688 (1992).
62. Appeal of Public Service Co., 141 N.H. 13 (1996).
63. Petition of Markievitz, 135 N.H. 455 (1992).
64. In re Robyn W., 124 N.H. 377 (1983).
65. Newell v. Moreau, 94 N.H. 439 (1947); Heinz v. Concord Union School Dist., 117 N.H. 214 (1977).
66. Pepin v. Beaulieu, 102 N.H. 84 (1959).
67. Opinion of the Justices, 121 N.H. 552 (1981) at 559.
68. Bradley Real Estate Trust v. Taylor, Commissioner, 128 N.H. 441 (1986) at 445.
69. Appeal of Ashland Elec. Dept., supra, note 52.
70. Appeal of City of Portsmouth, Bd. of Fire Comm’rs., 140 N.H. 435 (1995).
71. MacArthur v. Nashua Corporation., 126 N.H. 353 (1985) at 356.
72. To confine ourselves to a strictly literal interpretation as defendant would have us do would be to ignore the basic tenor of the statute. See, Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 Colum. L. Rev. 1259, 1264 (1947); State v. Dunphy, 114 N.H. 740 (1974).
73. Dickerson, The Interpretation and Application of Statutes 156 cited in Bradley Real Estate Trust v. Taylor, Commissioner, supra, note 68.


The Author

Attorney Daniel D. Crean is a solo practitioner in Concord, New Hampshire.



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