The City filed a Motion to Dismiss Mr. Braun’s lawsuit for failure to state a claim. Mr.
Braun objected and a hearing is scheduled on the motion on August 5, 2019.
The facts leading to the lawsuit are that on September 18, 2017, Mr. Braun allowed one
of his cats to roam unfettered outside in the public right of way and on the private property of
others. The cat had no collar or other outward identifying information. Said cat was trapped by
another Nashua resident on the resident’s private Nashua property in a HSGN “have-a-heart”’
trap. After capture of the trespassing cat, the resident called the Animal Control Officer of the
Nashua Police Department (“ACO”) requesting transport of the cat to HSGN. The ACO agreed
and transported the cat to HSGN. After the brief transport, HSGN took custody of the cat from
the ACO. HSGN returned the cat, unharmed, to Mr. Braun.
Analysis
The Board of Aldermen, here acting through the Finance Committee, has the statutory
powers to administer the operations of the city, including authority to "manage the prudential
affairs of the [city] and perform the duties by law prescribed." RSA 41:8, see also RSA 47:13.
Many of the Board of Aldermen’s powers and duties come from specific statutes (and
thus are “by law prescribed.”) For example, budget administration, RSA 32; financial
accounting and safeguarding, RSA 41:9; and management of city property, RSA 41:1 1-a, unless
assigned to another board by statute. Likewise, the Board of Aldermen is specifically given the
power to make any contract “which may be necessary and convenient for the transaction of the
public business of the town.” RSA 31:3.
Cats can contract and transmit rabies. Having a population of abandoned, hurt or feral
cats or cats that are allowed to roam without check or recourse on public lands and other
peoples’ yards can reasonably be viewed as a nuisance and potential health threat to the City’s
human population. Consequently, contracting for a safe place to transport to and drop-off
wayward, injured, abandoned or at-large domestic animals, such as cats, is necessary and
convenient for the transaction of the public business of the City. Further, there is no prohibition
in state law on the City contracting to impound cats.
In addition to the statutory authority to contract, the NH Supreme Court has found that
“t]he particular duties comprehended within the meaning of ihe phrase ‘prudential affairs’ are
not easily enumerated...” They are "empowered to do only such acts as are required to meet the
exigencies of ordinary town business." Moulton v. Beals, 98 N.H. 461, 463-4 (1954)(internal
citations omitted).
While seemingly limiting language, the authority "to meet the exigencies of ordinary
town business" should not be underestimated. The Board of Aldermen 1s empowered to protect
the City’s interests when no other board or official is specifically charged with the responsibility.
Also, while there are many specific statutory powers conferred on the Board of Aldermen and
other boards and officials, there are important government functions that are not expressly
assigned by statute. With the “prudential affairs” language, not all City actions need be
specifically articulated in state statute or City ordinance to be valid as long as they relate to
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