Opinion
No. 5153.
Argued June 25, 1963.
Decided July 9, 1963.
1. An ordinance permitting and regulating retail business on Sunday adopted by the selectmen of a municipality pursuant to RSA 578:5 is not operative and valid until approved by a majority vote at the next regular town meeting and until that time the ordinance is not a defense to a prosecution for violation of the statute prohibiting sales of merchandise on Sunday.
2. The certification and transfer of questions of law from the municipal court to the Supreme Court under RSA 502:24 is discretionary with the municipal court justice.
3. Municipal courts are courts of record. RSA 502:27.
Certification of a question of law from the Rollinsford municipal court (Ovide R. Viel, justice) pursuant to RSA 502:24. The criminal complaint charges that the defendant on Sunday, June 9, 1963, did "at a store called Kent-McCray" situated in said Rollinsford, sell merchandise, to wit "a tee shirt of the value of One Dollar" in violation of RSA 578:4.
The reserved case in part reads as follows: "Evidence was introduced by the State that the respondent was the manager of a certain department store known as Kent-McCray in said Rollinsford on June 9, 1963; that on said day the respondent, at approximately 1:00 P.M. on the premises of said department store, did sell a tee shirt to the value of One Dollar to a customer of said store. The respondent did not deny the facts as alleged and proved but offered in evidence an ordinance enacted by the Selectmen of the Town of Rollinsford May 23, 1963. The State denied the validity of this ordinance until such time as it has been duly adopted at a regular Town Meeting of the citizens of the Town of Rollinsford. All questions of law raised herein are hereby reserved and transferred without ruling by the Municipal Court."
William Maynard, Attorney General, Irma A. Matthews, Law Assistant and Robert A. Carignan, county attorney (Mrs. Matthews orally), for the State.
Alfred Catalfo, Jr. (by brief and orally), for the defendant.
The issue in this case is whether an ordinance adopted by the selectmen of the town of Rollinsford is a valid defense to a prosecution for selling merchandise on Sunday. The defendant contends that it is a valid defense while the State maintains that the ordinance has no present force or effect and cannot become effective until it is approved by a majority vote of the legal voters present and voting at the next regular election of the town.
RSA 578:4 prohibiting the sale of merchandise on Sunday with certain exceptions is given some flexibility by RSA 578:5. This latter statute provides that selectmen may adopt ordinances permitting and regulating retail business ". . . on the Lord's Day, provided such . . . ordinances are approved by a majority vote of the legal voters present and voting at the next regular election . . . ." The defendant urges that RSA 578:5 should be construed to hold that the ordinance adopted by the selectmen "becomes valid and remains valid until such time as the town voters meet at their regular meeting." The answer to that contention was made at the beginning of the legislative session in January 1961 in Mason v. Salem, 103 N.H. 166, 168: "When the Legislature has desired that regulations by selectmen shall be immediately effective until approved or rescinded by the voters, they have usually made explicit provision therefor. See RSA 31:41, 42 regulating open-air motion picture theaters." It is significant that no changes in the Sunday laws to give selectmen interim powers to make regulations and ordinances effective immediately have been made in either the 1961 or the 1963 legislative sessions. See Senate Bill 97 (1963) referred to the Legislative Council. House Journal June 27, 1963, p. 44. The ordinance adopted by the selectmen is no defense to the pending criminal complaint.
The defendant's exception to the certification of a question of law to this court by the Rollinsford municipal court is overruled. It was decided in State v. Deane, 101 N.H. 127, 130 that certification and transfer under RSA 502:24 "is discretionary with the municipal court" and this was specifically reaffirmed in Riendeau v. Millford Municipal Court, 104 N.H. 33, 34. The further contention "that the Rollinsford Municipal Court is not a court of record" is without merit. RSA 502:27.
Remanded.
All concurred.