Opinion
No. 4838.
Argued June 7, 1960.
Decided June 30, 1960.
1. Towns derive their power from the Legislature and are bound by the limits imposed upon them, and hence town ordinances may not be inconsistent with the statutory law of the state.
2. A town ordinance which prohibits hunting and the discharge of firearms throughout the town unless written permission is obtained from the landowner is inconsistent with the statutory law of the state regulating hunting and the discharge of firearms (RSA Tit. XVIII, Fish and Game; RSA 572:15, 50, supp.) and hence is invalid.
3. So also, a town may not enact by-laws to provide for penalties in excess of its statutory authority (RSA 31:39).
TRANSFER, of questions of law from the Durham municipal court under RSA 502:24.
The complaint and warrant charged that the defendant, on November 22, 1959, did enter certain woodlands, the property of Chester H. Tecce, located in Durham and did discharge a shotgun without written permission of the owner, contrary to the provisions of action taken under Item 14 of the Durham town warrant (March, 1959), which provided "Hunting and shooting are prohibited within the town of Durham, subject to a $50 fine, except in cases where written permission of the property owner has been obtained."
The defendant pleaded not guilty and moved that the complaint be quashed "on the grounds that it was invalid as being repugnant to the common law, to the New Hampshire case law, to the New Hampshire Constitution, and to various New Hampshire statutes."
All questions of law raised by the defendant's motion were reserved and transferred by Michael, special justice of the Durham municipal court.
Louis C. Wyman, Attorney General and Robert A. Carignan, county attorney (Mr. Wyman orally), for the State.
Burns, Bryant Hinchey (Mr. Hinchey orally), for the defendant.
The Attorney General joins with the defendant in challenging the validity of the by-law.
Towns are empowered by statutory authority to make by-laws for a variety of purposes. These generally fall into the category of health, welfare and public safety. Suitable penalties to insure their enforcement "not exceeding ten dollars for each offense" may be provided (emphasis supplied). RSA 31:39.
Towns derive their power from the Legislature and "are bound by the limits imposed upon them . . . ." Opinion of the Justices, 101 N.H. 544, 545, and cases cited. "In the nature of things, such [local] legislation must be not inconsistent with the laws of the state . . . ." State v. Paille, 90 N.H. 347, 349.
The State has undertaken to regulate hunting, fishing and the use of firearms throughout the state during certain periods of the year. RSA Tit. XVIII, FISH AND GAME. Among other provisions, a hunter may enter upon improved land of another and discharge firearms during a certain period of the year unless such land is posted (RSA 572:15) and likewise a hunter may enter upon uncultivated land unless ordered to leave by the owner or unless said land is posted by orders of the Fish and Game Department. RSA 572:50 (supp.).
The Durham by-law would prohibit hunting and the discharge of a firearm in the entire town unless written permission of the owner was obtained and is thus inconsistent with the statutory law of the state regulating hunting and the discharge of firearms. The by-law "assumes authority which the legislature has taken away" (State v. Paille, supra, 351) and hence is invalid. State v. Angelo, 71 N.H. 224. In attempting to provide for a maximum fine of $50, the town has exceeded its statutory authority. RSA 31:39.
Complaint quashed.
All concurred.