dissenting: I join in the court’s view that an unfunded legislative mandate enacted after the adoption of part I, article 28-a of the Constitution of New Hampshire does not exceed the enforceable legislative power as limited by that article unless the mandated program or responsibility would expand the subject matter of a political subdivision’s obligation, and the augmentation would require increased expenditure. Although these ostensibly simple terms promise a long future of litigation before they become exactly understood, their distinctiveness is clear.
*28Nor do I disagree that the amendment to RSA 281-A:17, II (Supp. 1989) has been shown to fall within these terms. There was an evidentiary basis for the superior court’s finding that the new presumption of occupational relationship would, if applied, result in some instances of municipal responsibility for paying workers’ compensation benefits with respect to fire fighters’ cancers that are not actually work-related. This finding by the trial court is properly understood to go beyond the possibility inherent in any subject of litigation, that finders of fact may sometimes make mistakes, and to predict that a new class of coverage-in-fact of people not eligible in theory would result from the extreme difficulty of rebutting the presumption. The finding that this new class of coverage would be a statutory result satisfies the subject-matter condition for invoking article 28-a, and no one in this litigation disputes that the new coverage would cost additional money, whether measured in payments of benefits or insurance premiums.
The case is more complex, however, than these points of agreement would suggest, as can be seen from the fact that the statutory amendment would affect not one, but two classes of workers’ compensation claimants. It would affect not only those claimants with cancers unrelated to their firefighting occupation, who would obtain benefits on the strength of the new presumption of causation, but those whose cancers truly are work-related, as well. We must assume that the latter class exists, for we have no basis to go behind the legislative conclusion that some cases of cancer in active or retired fire fighters will be proper subjects of workers’ compensation benefits. The effect of the presumption on such claimants with genuinely work-related cancers would not, of course, be to provide coverage where none previously existed, but to provide a means of proving entitlement to benefits where the difficulty of proof might previously have defeated their claims. Although the financial consequences of applying the new presumption to this latter class might well be significant, that alone would not implicate article 28-a, since increased expenditure alone is not equivalent to the expansion of a program or responsibility.
Because the application of the amendment in question could thus be expected to have some consequences that would be rendered unenforceable by article 28-a and some that would be perfectly enforceable against municipal employers, this case cannot be decided without answering an important question about how article 28-a *29should be applied when the legislative mandate would have such dual effects. The court today answers that question by holding sub silentio that the present plaintiffs’ demonstration that some but not all consequences of the amendment in question would be subject to an unsatisfied funding requirement implicating article 28-a renders the amendment totally unenforceable. I am concerned about this element of the court’s decision for more than one reason.
In dealing with this question only by implication, the court’s assumptions about the proper construction of article 28-a are left uncertain. The court may assume, for example, that when the mandate of a single legislative provision would have such dual constitutional effects, one of them subject to the article 28-a funding requirement and one of them not, the failure to fund the portion subject to article 28-a will always render the entire enactment unenforceable. The court may, on the other hand, assume that the enactment in question here must be declared unenforceable in toto only because it would be impossible to determine the extent to which the mandated cost, if calculable in advance, would be attributable to the new responsibility of paying benefits for cancers that are not work-related, as distinguished from the old responsibility of ensuring against occupationally related disease. If the latter reading is correct, I have to admit that I intuitively share the court’s judgment insofar as I can draw any conclusion from the present record. (In light of that record, we have to assume that in some cases it would be impossible to tell whether the cancer was work-related; otherwise the new presumption would not have the predictable effect of covering some non-related cancer cases. Going beyond individual cases, the record suggests the difficulty or impossibility of generalizing about the percentage of occupationally related illness among all fire fighters with cancer during or after their careers; while the legislature heard testimony about an occupationally-correlated differential rate of the disease, testimony before the trial court indicated that existing data would support no such general conclusion.)
But however sound that intuition may be on the basis of the existing record, it is only an intuition, and the question implicitly answered by the court was raised neither in the superior court nor before us. Because we cannot adequately deal with such a significant issue when it has not been properly raised, and because we cannot decide the case without dealing with that issue in some way, we should remand for its explicit consideration and the reception of such *30further evidence as the parties could present. Because the court takes the contrary course, I respectfully dissent.
Thayer, J., joins in the dissent.