State v. Hutchins

• Decision Date: 16 November 1977
• Docket Number: No. 7730,7730
• Citation: State v. Hutchins, 380 A.2d 257, 117 N.H. 924 (N.H. 1977)
• Parties: The STATE of New Hampshire v. Richard HUTCHINS, Robert Binnette and Arthur Colby.
• Court: New Hampshire Supreme Court

Page 257

380 A.2d 257

117 N.H. 924

The STATE of New Hampshire v. Richard HUTCHINS, Robert Binnette and Arthur Colby.

No. 7730.

Supreme Court of New Hampshire.

Nov. 16, 1977.

Peter J. Loughlin, City Sol., Portsmouth, for the city of portsmouth.

Casassa, Mulherrin & Ryan, and David A. Riggs, Hampton, for defendants.

DOUGLAS, Justice.

The issue before us is whether the city of Portsmouth has jurisdiction to enact an ordinance that restricts the routes over which propane hauling vehicles may be operated within the city limits of Portsmouth, but outside the "compact zone" as determined by the Commissioner of Public Works and Highways. We find that this regulation has not been preempted by the state and that the city of Portsmouth has acted within its statutory authority to regulate the transportation of hazardous materials inside city limits.

The defendants are employees of Northeast Cartage Company, Inc., a New Hampshire corporation. They were charged with violating Portsmouth's hazardous materials ordinance, Portsmouth Rev. Ordinances ch. 7, art. 8 (1975), which restricts passage of any "motor vehicle . . . designed to transport 4,000 or more gallons of liquified petroleum gas or liquified natural gas and (containing) liquified petroleum gas or liquified natural gas or the vapor fumes of either" to certain designated routes. The complaints brought by the city alleged that the defendants were operating propane trucks on Route 1 in Portsmouth, which is not one of the designated routes. The arrests were made on a portion of Route 1, a Class 1 highway, which is within the city limits but lies outside the compact zone. Defendants challenged the city's jurisdiction to enact the ordinance; the question was transferred without ruling by the Portsmouth District Court (Taylor, J.).

The General Court has given the Commissioner of Public Works and Highways the authority to regulate "the use of Class 1 highways in . . . cities outside the compact portions thereof as determined by him." RSA 249:5 (Supp.1975). Were the Commissioner to promulgate regulations under the grant, any conflicting municipal ordinance would be voided, RSA 47:17 XV (Supp.1975); see State v. Boisvert, 117 N.H. 291, 371 A.2d 1182 (1977) (per curiam); State v. Jenkins, 102 N.H. 545, 162 A.2d 613 (1960); State v. Paille, 90 N.H. 347, 9 A.2d 663 (1939). But he has yet to exercise his authority in this situation. Consequently any city ordinance not inconsistent with state statutes may stand unless the legislature has clearly manifested an intent to preempt the field of highway...