State v. Merski, 6507

• Decision Date: 28 February 1975
• Docket Number: No. 6507,6507
• Citation: 333 A.2d 159,115 N.H. 48
• Parties: STATE of New Hampshire v. Leonard MERSKI.
• Court: New Hampshire Supreme Court

Page 159

333 A.2d 159

115 N.H. 48

STATE of New Hampshire v. Leonard MERSKI.

No. 6507.

Supreme Court of New Hampshire.

Feb. 28, 1975.

Warren B. Rudman, Atty. Gen., and Richard V. Wiebusch, Concord, for the state.

Leonard J. Merski, Concord, by brief and orally, pro se.

PER CURIAM.

Two questions arise from a complaint charging a breach of a city ordinance that prohibits dogs from running at large within the city of Concord, New Hampshire. The first issue is whether the discretion given to the chief of police to issue complaints invalidates the ordinance as an unlawful delegation of authority. The second issue is whether an action for violating the ordinance may be brought by a private citizen when the ordinance authorizes the chief of police to issue such complaints.

This case proceeded on a private complaint filed in the Concord District Court. After a finding of guilt without imposition of a fine, the defendant appealed for a de novo hearing in superior court. A motion to quash was introduced in superior court, but since the legality of the ordinance was questioned, the court reserved and transferred this question without ruling (Mullavey, J.).

There is no record of testimony in either the Concord District Court or in superior court. For the purpose of this transfer, the allegations contained in the complaint are to be considered as true. The complaint states that Leonard Merski, on September 9, 1974, in and around 77 Mountain Road, in Concord, New Hampshire, committed the offense of allowing his dog to run at large in contravention of the municipality's ordinance. Concord, N.H., Ordinance Control of Dogs 10A.2 (1967).

This ordinance provides in part that 'it shall be unlawful to permit any dog to run at large within the compact area of the city of Concord'. Id. 'Running at large' means 'without the premises, residence or property of the owner and not under control of a responsible individual.' Id. 10A.1(c). Whoever violates the ordinance 'shall be guilty of a misdemeanor and, upon conviction, . . . shall be punished by a fine of not more than five dollars ($5.00) for the first offense and by a fine of not more than ten dollars ($10.00) for each subsequent offense'. Id. 10A.8. Enforcement of the ordinance, 'shall be the responsibility of the Police Department of the City of Concord . . . (and the) . . . Chief of Police may at his discretion, issue complaints alleging violations of the ordinance'. Id. 10A.7.

Defendant contends that the...