A tax upon the franchise of electric utilities based upon the electricity produced at a rate of 1/4 of a mill per kilowatt hour is a privilege tax not permitted under the Constitution. A franchise or privilege to do certain things may be granted to a corporation or an individual but a tax laid upon it is subject to the constitutional rules of proportionality and reasonableness which apply to all taxes.
The following resolution was adopted by the House of Representatives at the present session of the General Court on January 27, 1949:
"Resolved that the Justices of the Supreme Court be respectfully requested to give their opinion upon the following question of law:
"Do the provisions of House Bill No. 188, An act in amendment of Chapter 84 of the Revised Laws relating to the franchise tax, conform to the fundamental law of the State?
"Further Resolved that the Speaker transmit a copy of this Resolution and of House Bill No. 188 to the Clerk of the Supreme Court for consideration by said Court."
The following answer was returned:
To the House of Representatives:
The undersigned the Justices of the Supreme Court make the following answer to the inquiry in your resolution with reference to House Bill No. 188, entitled, "An Act in Amendment of Chapter 84 of Revised Laws Relating to the Franchise Tax."
In our opinion the proposed act is unconstitutional. Chapter 84 of the Revised Laws was apparently enacted in strict conformity to the Opinions of the Justices, 82 N.H. 561 and 84 N.H. 559, and imposes a property or estate tax upon franchises at "the average rate of taxation at that time upon other property throughout the state." The proposed bill would tax electric utilities at the rate of one-quarter of a mill for each kilowatt hour of electricity produced within the state during the prior taxable year over and above the electricity consumed by the utility in connection with such production.
A "franchise or privilege to do certain things may be granted to a corporation . . . or an individual," but "a tax laid upon it is subject to the constitutional rules of proportionality and reasonableness which apply to all taxes." Opinion of the Justices, 82 N.H. 561, 565. The proposal of House Bill No. 188 would change the character of the tax from an estate tax to a privilege tax, which is not permitted by our Constitution. Opinions of the Justices, 82 N.H. 561, 565; 84 N.H. 559, 567-568, 576.
OLIVER W. BRANCH. FRANCIS W. JOHNSTON. FRANK R. KENISON. LAURENCE I. DUNCAN. AMOS N. BLANDIN, JR.