State v. Paille

• Decision Date: 07 November 1939
• Citation: 9 A.2d 663
• Parties: STATE v. PAILLE.
• Court: New Hampshire Supreme Court

9 A.2d 663

STATE

v. PAILLE.

Supreme Court of New Hampshire. Merrimack.

Nov. 7, 1939.

[Copyrighted material omitted.]

Urgel Paille was convicted in a municipal court for violating an ordinance of the city of Concord relating to barber shops, and he appealed. The case was transferred to the Supreme Court in advance of trial and without ruling.

Complaint quashed.

Appeal, from a Municipal Court conviction upon a complaint for violation of an ordinance of the city of Concord relating to barber shops.

Entitled an ordinance "to protect the public, the public health, well being and morals by governing and regulating conditions of barber shops", it excepts "beauty shoppes or hair dressing establishments serving female customers exclusively". It forbids the operation of a barber shop in a manner not permitted by the public health laws and barber law of the State, or in non-observance of the rules and regulations of the local board of health governing barber shops, or contrary to the regulations of the ordinance relating to opening and closing hours. As to such hours, it requires that no shop be opened before 8 a. m. or remain open after 6, 8 or 9 p. m. for specified days of the week. The closing hours for certain days differ for different parts of the city. On Wednesdays the closing hour throughout the city is noon. Exceptions in weeks when public holidays occur are made. Violations of the ordinance are punishable by a fine of not less than $10 nor more than $20.

The defendant is charged with keeping his shop open on a Wednesday afternoon.

The question whether his motion to quash the complaint on the ground that the ordinance is repugnant to the state and federal constitutions has been transferred in advance of trial and without ruling by Connor, J.

Raymond K. Perkins, County Sol., of Concord, for the State.

Herbert W. Rainie, of Concord, for defendant.

ALLEN, Chief Justice.

The case presents two independent issues under the state constitution. One relates to the legislative grant of authority to enact the ordinance. The other is whether free enterprise may be fettered in the manner the ordinance enacts.

I. The first issue is ordinarily regarded as a statutory one, in view of the statute (P.L., c. 54, § 12, XIV) providing, in empowering city councils to make by-laws and regulations which "may seem for the well-being of the city", that "no by-law or ordinance shall be repugnant to the constitution or laws of the state". But without this provision the limitation of municipal power would be no less. It is superfluous for state legislation to declare that the constitution may not be violated, and it is no less so to declare that ordinances must not conflict with state legislation. The framework and system of state government established by our constitution would obviously be attacked and undermined if municipalities were free to enact unpermitted legislation for their localized areas. Unauthorized local legislation adding to, detracting from, or otherwise affecting state legislation is not constitutionally valid. "In the nature of things, such [local] legislation must be not inconsistent with the laws of the State * *." State v. Noyes, 30 N.H. 279, 293.

In State v. Angelo, 71 N.H. 224, 51 A. 905, an ordinance of Somersworth requiring peddlers to pay a monthly license fee was held invalid on two grounds. In respect to one it was said (71 N.H. page 228, 51 A. at page 907): "By comparing the ordinance with [state legislation], it will be seen that the statute embraces the whole subject that is covered by the ordinance, and that the provisions of the one are inconsistent with those of the other. The statute applies to the whole state. There is nothing in it which shows or tends to show an intention on the part of the legislature to exempt any town from its operation under any circumstances".

Considering the ordinance under examination in the light of the foregoing test of validity, its prescription of a penalty for violation of the public health laws of the state and the state barber law is peculiarly an abortive attempt to interfere with state legislation. The state barber act (Laws 1937, c. 163, § 21) provides penalties for the violation of any of its requirements or of any rule or regulation made pursuant to it. The act applies to all cities and to certain towns. Defining the conditions for doing business, it permits the conduct of the business upon compliance with them. Imposing a penalty within fixed limits for violation of the conditions, it determines how severe the penalty may be. For a municipality to ordain that an additional penalty for a violation within its borders shall be imposed is in effect an attempt to amend the statute in local application. Two penalties for the same offence would be en-lorceable if the ordinance were to he sustained. A statute operating in all municipalities where it is in force with no difference by its terms in application to them would receive unequal effect. If a municipality might add to the severity of punishment, it would be as arguable that it might lessen it. The proposition is so absurd in its manifest disregard of the basic organization of the state government as to make further discussion needless.

The state act provides for shop registration. By it the state examining and licensing board is required to issue to certified operators a shop registration if the local board of health reports upon investigation that the shop is, "with respect to its location, appointments, equipment and appliances, suitable and sanitary" for its purposes. Section 16. The local board is required to enforce the act by inspections from time to time and by prosecution for its violations, with the general cooperation of the state board. Section 21.

As has already appeared, violation of any rule or regulation made under the act is a misdemeanor. The record does not disclose the state board's rules and regulations, but so far as that board adopts those of local boards in local application, their violation is penalized by the statute. While local rules may not be the same in all places, the state board's authority to adopt them is not to be denied for that reason. Varying local conditions may well justify special rules therefor.

In due construction of the statute, suitable and sanitary conditions are to be found by local boards under the tests of such rules and regulations as may be established by either the state or a local board, and the acceptance of a local board's findings implies the adoption of its rules and regulations by the state board. The general intent of the statute is to vest in the state board final regulatory power to secure suitable and sanitary conditions in barber shops, and the implication that local rules specially relating to shops are to be regarded as a part of the body of state rules is fairly manifest. Regulation of "the practice of barbering" is the entitled statutory enactment, and the purpose of the statute to make full and complete provision therefor, with ultimate authority assigned to the state board in respect to shop registrations, is to be found. General uniformity of proper conditions may be subject to qualifications to meet reasonable variations between different municipalities, and local rules in respect to conditions may therefore vary. To maintain the integrity of the state board's authority its adoption of such rules is to be assumed.

Before the passage of the state act all local boards of health were required to promulgate certain specified regulations for the management of barber shops, the violation of the regulations or of any other regulation prescribed by such boards for barber shops as a health measure was made a misdemeanor, and such boards were under duty to make regular inspections of barber shops and prosecute violations of the regulations. P.L., c. 133, §§ 19-21. By the state act these provisions are not applicable in places where it is effective. Laws 1937, c. 163, § 22. This distinction is further reason for the inference that the state act vests in the state board final supervisory and directive authority in enforcement of the act.

Any local rule or regulation employed to aid in the determination of proper conditions for the grant of shop registration or specially relating to the conduct of a shop is accordingly held to be sanctioned by the state board as an implied adoption of the rule for the special locality. It follows that the ordinance is invalid in its provision for a penalty for violation of such a local rule, for the same reason of invalidity in respect to a penalty for violation of a general rule of the state board.

In respect to closing hours, the act, as already stated, is construed to provide in full for social regulation. It leaves open no field for local regulation of shops classified by themselves. The conduct of a shop may not be specially regulated by local authority on the ground of its special business of barbering, since the act was designed as an all-inclusive measure of regulation upon the subject as a particular business or occupation. In consequence, the ordinance assumes authority which the legislature has taken away. The loss of constitutional support for it must therefore be declared;

The inquiry upon the topic of delegated authority is not in strict exactness whether the constitution has been violated, but whether the ordinance may be upheld as passed upon a valid grant of authority. The mere fact of enactment of an ordinance presupposes no authority to enact, and the statutes under which the claim of authority is asserted are subject to no rule of construction requiring the claim to be sustained if it possibly may be. A municipality having no constitutional powers except as are expressly or impliedly granted by the legislature, the extent or character of a grant is to be determined by normal rules of statutory construction. What the legislature has authorized is not shown by what the...