Donnelly v. City of Manchester

• Decision Date: 26 February 1971
• Docket Number: No. 6102,6102
• Citation: 274 A.2d 789,111 N.H. 50
• Parties: David R. DONNELLY v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

Page 789

274 A.2d 789

111 N.H. 50

David R. DONNELLY v. CITY OF MANCHESTER.

No. 6102.

Supreme Court of New Hampshire.

Feb. 26, 1971.

McLane, Carleton, Graf, Greene & Brown and Jack B. Middleton and Arthur G. Greene, Manchester, for plaintiff.

J. Francis Roche, City Sol., by brief and orally, for defendant.

GRIMES, Justice.

In this petition for declaratory judgment the plaintiff, a resident of the town of Derry in this State and an employee as a schoolteacher of the defendant, seeks to have declared invalid an ordinance of the defendant which requires that all classified employees of the city, including school-teachers, be or become within twelve months of their employment residents within the boundaries of the city unless granted a special permit by the Board of Mayor and Aldermen for certain specified reasons.

All questions of law were transferred here on an agreed statement of facts without ruling by Leahy, C.J.

The ordinance in question requires that in the absence of a waiver all positions shall be filled with persons who reside within the city. If the residence requirement is waived at the time a person is hired, the person receiving the waiver must immediately take steps to become a resident of the city and must move into the city within twelve months. Permits to reside outside the city may be granted only for extreme financial hardship, shortage of housing, or health reasons. Section III:(F)(1), (2) & (3).

We agree with the petitioner's contention that this ordinance constitutes an unconstitutional exercise of governmental power and is invalid.

Ordinances if authorized by legislation enjoy the same presumption of constitutional validity as statutes (State v. Moore,91 N.H. 16, 21, 13 A.2d 143, 147 (1940); State v. Paille, 90 N.H. 347, 352, 9 A.2d 663, 666 (1939); State v. Grant, 107 N.H. 1, 3, 216 A.2d 790, 791 (1966); and they will not be declared void except on unescapable grounds. Petition of Boston & Maine Corp., 109 N.H. 324, 251 A.2d 332 (1969); Chronicle &c. Pub. Co. v. Attorney-General, 94 N.H. 148, 48 A.2d 478 (1946). However when a statute or ordinance is clearly in conflict with the Constitution it is the duty of this court to declare it void. Petition of Boston & Maine Corp., supra 109 N.H. at 326, 251 A.2d 332. 'That the legislation may be of some public benefit is not enough, under the state Constitution, to give it validity. In addition, it must not impair or destroy private rights guaranteed by the Constitution.' Woolf v. Fuller, 87 N.H. 64, 68, 174 A. 193, 196 (1934). It is recognized however that some impairment of private rights may be permitted and the test which has usually been employed is whether the restriction is reasonable. Id. at 68, 174 A. at 196. In passing upon the reasonableness of a restriction upon private rights the importance of the public benefit is balanced against the seriousness of the restriction of the private right sought to be imposed. Id.; Dederick v. Smith, 88 N.H. 63, 68, 184 A. 595, 599 (1936); State v. Paille, 90 N.H. 347, 352, 9 A.2d 663, 666 (1939). Thus it has been said that 'if the legislation is directed to a public interest of minor concern, while imposing serious restrictions in regulation or bar of guaranteed rights to accomplish the interest, it tends to show its unreasonableness.' Woolf v. Fuller,supra, 87 N.H. at 68-69, 174 A. at 196.

The right of every citizen to live where he chooses and to travel freely not only within the state but across its borders is a fundamental right which is guaranteed both by our own and the Federal Constitutions. Ratti v. Hinsdale Raceway, 109 N.H. 270, 249 A.2d 859 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). It is fundamental also that both Constitutions guarantee to all persons the equal protection of the laws, (State v. Pennoyer, 65 N.H. 113, 18 A. 878 (1889)) so that 'all persons should be equally entitled to pursue their happiness * * *.' Id. at 115, 18 A. at 880.

There is no question but that the Manchester ordinance places a restriction on a fundamental right of its employees to live where they wish. This being so the ordinance can be upheld only if the requirement that the employees live within the city serves a public interest which is important enough to justify the restriction on the private right. There is nothing in the record before us nor have any reasons been advanced which would justify the broad restrictions of this ordinance. We do not say that there are no employees whose residence near their place of duty may not be important enough to justify a restriction upon their place of residence but if such restrictions are permissible as to some this does not justify the broad and all inclusive requirement that all employees...