New Hampshire Court Rules City’s Pistols-and-Swords Mandate is Constitutional - Granite Grok

New Hampshire Court Rules City’s Pistols-and-Swords Mandate is Constitutional

Well, not expressly, but I thought I would have some fun by substituting “pistols-and-swords” for “masks” in the recent Superior Court decision giving the thumbs-up to Nashua’s mask mandate:

Related:  Top Health Officials in Europe: “Masks Aren’t Helpful in Beating COVID-19”

Although there exists no express authority for a city to enact an ordinance requiring the [carrying of a pistol and sword] during a [time when ANTIFA and Black-Lives-Matter are engaging in rioting], RSA 47:17, XV gives the City “the power to ‘make any other bylaws and regulations which may seem for the well- being of the city’ so long as ‘no bylaw or ordinance’ is ‘repugnant to the constitution or laws of the state.’” Id. at 783–84. “Moreover, the governmental authority known as the police power is an inherent attribute of state sovereignty.” Id. at 784. “The police power is broad and ‘includes such varied interests as public health, safety, morals, comfort, the protection of prosperity, and the general welfare.’” Id. “The express and implied powers granted to towns by the legislature must be interpreted and construed in light of the police powers of the state which grants them.” Id. As such, municipalities are empowered “to make bylaws for a variety of purposes which generally fall into the category of health, welfare, and public safety.” Id.

Here, it is obvious that the purpose of the [Pistols-and-Swords] Ordinance is to slow or prevent the spread of [the violent and deadly ANTIFA and Black Lives Matter rioting into New Hampshire]. In other words, the Ordinance is clearly for the “well being” of the City’s residents, visitors, and businesses. It follows that the Board of Aldermen was authorized to pass the Ordinance pursuant to RSA 47:17, XV as well as its general authority to enact laws protecting “health, welfare, and public safety.” Id. Based on this analysis, it is unlikely that the plaintiff will prevail on the merits of this claim. This is fatal to his request for a preliminary injunction. See Mottolo, 155 N.H. at 63.

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The Superior Court’s decision … by the way … is wrong. I may do a longer post on this later, but I will briefly say why here.

The Superior Court said the power of Nashua to issue a mask mandate came from two sources: RSA 47:17, XV and “the police power.”

Here is RSA 47:17, XV:

XV. Miscellaneous. Relative to the grade of streets, and the grade and width of sidewalks; to the laying out and regulating public squares and walks, commons, and other public grounds, public lights, and lamps; to trees planted for shade, ornament, convenience, or use, and the fruit of the same; to trespasses committed on public buildings and other public property, and in private yards and gardens; in relation to cemeteries, public burial grounds, the burial of the dead, and the returning and keeping records thereof, and bills of mortality, and the duties of physicians, sextons and others in relation thereto; relative to public wells, cisterns, pumps, conduits, and reservoirs; the places of military parade and rendezvous, and the marching of military companies with music in the streets of the city; relative to precautions against fire; relative to oaths and bonds of city officers, and penalties upon those elected to such offices refusing to serve; and relative to licensing and regulating butchers, petty grocers, or hucksters, peddlers, hawkers, and common victualers; dealers in and keepers of shops for the purchase, sale or barter of junk, old metals or second-hand articles, and pawnbrokers; under such limitations and restrictions as to them shall appear necessary. They may make any other bylaws and regulations which may seem for the well-being of the city; but no bylaw or ordinance shall be repugnant to the constitution or laws of the state; and such bylaws and ordinances shall take effect and be in force from the time therein limited, without the sanction or confirmation of any other authority whatever. 

The Superior Court ignored the principle of ejusdem generis: “where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned.” State v. Proctor, 170 NH at 806. The items preceding the “any other bylaws and regulations” language are not remotely related to a mask mandate. So … RSA 47:17, XV does NOT give Nashua the power to impose a mask mandate.

As for “the police power,” municipalities in New Hampshire only have the “police powers” granted to them by the Legislature. Municipalities do not possess any independent “general authority to general authority to enact laws protecting ‘health, welfare, and public safety.’”

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