State by City of Rochester v. Driscoll

• Decision Date: 07 April 1978
• Docket Number: No. 7887,7887
• Citation: State by City of Rochester v. Driscoll, 385 A.2d 218, 118 N.H. 222 (N.H. 1978)
• Parties: The STATE of New Hampshire, BY CITY OF ROCHESTER v. George E. DRISCOLL.
• Court: New Hampshire Supreme Court

Page 218

385 A.2d 218

118 N.H. 222

The STATE of New Hampshire, BY CITY OF ROCHESTER v. George E. DRISCOLL.

No. 7887.

Supreme Court of New Hampshire.

April 7, 1978.

Fisher, Parsons, Moran & Temple, Dover (Harold D. Moran, Dover, orally), for City of Rochester.

Michael & Jones, Rochester (Franklin C. Jones, Rochester, orally), for defendant.

BOIS, Justice.

This appeal centers on whether that part of chapter XVI of the Rochester City Ordinance regulating the use of ambulance sirens is valid. The defendant was tried and convicted by the district court of operating an ambulance siren in the city of Rochester in violation of the ordinance. The defendant seasonably excepted to the denial of his motion to dismiss. All questions of law raised by this and other exceptions were reserved and transferred by Cooper, J.

We hold that, to the extent the ordinance in question attempts to regulate and restrict the use of ambulance sirens on emergency vehicles, it is invalid. The defendant's exception to the denial of the motion to dismiss is sustained and his conviction reversed.

On June 30, 1977, the defendant, chief of the Sanford, Maine, Fire Department, received an emergency call from the Rochester Fire Department requesting the defendant to transport an automobile accident victim from Lebanon, Maine, to Frisbie Memorial Hospital in Rochester. While responding to the call and driving his rescue/ambulance vehicle through downtown Rochester en route to the hospital, the defendant sounded the vehicle's siren. He was arrested for doing so. We note that prior to this incident the defendant had been warned that section 38(a) of chapter XVI of the ordinance forbade the use of all but high-low pitch electronic sirens on emergency vehicles in the compact area of the city. He had also been advised to use an alternative route to avoid the compact portion of the city. Driscoll, admittedly on an emergency run, was intent on testing the validity of the ordinance.

In pertinent part, chapter XVI of the Rochester City Ordinances provides:

Section 36: No person shall operate any vehicle on any street so as to make any loud, unusual or other unnecessary noise as hereinafter defined in Section 38 of this chapter.

Section 37: No person shall operate any vehicle in the compact portion of the City of Rochester so as to make any loud, unusual or other unnecessary noise as hereinafter defined in Section 38 of this Chapter.

Section 38: Definitions

(a) The word "vehicle" shall include bus, highway building equipment, motorcycle, motor truck, motor vehicle, semitrailer, sidecar, tractor, trailer or ambulance, fire truck, including but not restricted to any motor vehicle operated by or under the control of a regular or volunteer fireman or police officer.

FURTHER, meaning and intending that no sirens as presently used on mobile emergency apparatus shall be used in the City of Rochester on any vehicle for any purpose.

We hold that because the legislature has undertaken the regulation of emergency vehicle sirens in several ways, it has clearly manifested an intent to preempt the field. See Lavallee v. Britt, 118 N.H. ---, 383 A.2d 709 (1978); Dover News, Inc. v. Dover, 117 N.H. ---, 381 A.2d 752 (1977); State v. Hutchins, 117 N.H. ---, 380 A.2d 257 (1977). So far as Sections 36-38 of chapter XVI of the city ordinance curb the uses of sirens on mobile emergency apparatus, they are invalid.

There is no question but that under the police power, a municipality can regulate or prohibit noises which may affect the public health or welfare." 56 Am.Jur.2d Municipal Corporations, Counties and Other Political Subdivisions § 470 (1971). City councils are empowered by RSA 47:17 XV to enact bylaws and ordinances for the well being of their cities. Such power, however, is not unlimited; local legislation must not be inconsistent with state law. Lavallee v. Britt, 118 N.H. ---, 383 A.2d 709 (1978); Dover News, Inc. v. City of Dover, 117 N.H. ---, 381 A.2d 752 (1977); State v. Boisvert, 117 N.H. ---, 371 A.2d 1182 (1977); State v. Paille, 90 N.H. 347, 9 A.2d 663 (1939); RSA 47:17 XV.

Local legislation is repugnant to State law when an ordinance or bylaw either expressly contradicts a statute, e. g., State v. Jenkins, 102 N.H. 545, 162 A.2d 613 (1960); State v. Angelo, 71 N.H. 224, 51 A. 905 (1902), or else runs counter to the legislative intent underlying a statutory scheme, e. g., Dover News, Inc. v. City of Dover, supra; State v. Boisvert, supra; State v. Paille, supra.

One statute preempting the ordinance in question is RSA ch. 151-B (Supp.1975), which creates an emergency medical service coordinating board. To fulfill the statutory purpose of facilitating the transportation of the injured or sick "in the shortest practical time" and "in proper equipment," RSA 151-B:1 I, II (Supp.1975), the legislature empowered the board to set standards to be met by cooperating groups throughout the State. RSA 151-B:3, 4 (Supp.1975). The board is authorized to establish minimum standards for, inter alia, "vehicles" and "equipment for vehicles." RSA 151-B:4 III(b), (c) (Supp.1975). Section 12 of the chapter provides that:

Subject to the approval of the emergency medical service coordinating board, the director of the division of public health shall issue regulations to govern the standards of suitability of ambulances for the transportation of patients from the standpoint of . . . safety (and) ambulance markings . . ..

The practical effect of the Rochester ordinance would be to displace the statutory authority of the board and of the division of public health to determine, which, if any, types of ambulance sirens are necessary. RSA ch. 151 (Supp.1975) evidences the legislature's intent to make uniform State law regarding ambulance sirens.

Another type of uniformity sought by the legislature is nationwide uniformity of motor vehicle law. In both RSA ch....