HICKS, J.
These consolidated cases challenging the legality of a proposed amendment to the City of Manchester's charter are before us on interlocutory transfer without ruling from the Superior Court (O'Neill, J.). See Sup.Ct. R. 9. We conclude that the amendment is invalid.
The following facts are recited in the interlocutory transfer statement or are supported by the record. On July 30, 2008, the city clerk for the City of Manchester (City) received a charter amendment petition that proposed amending the City's charter to limit annual budget increases "to the change in the National Consumer Price Index—Urban as published by the United States Department of Labor for the calendar year immediately preceding the year of the budget adoption" (the spending cap). After the petition was supplemented with additional valid signatures, the deputy city clerk found that it was sufficient to require a public hearing pursuant to RSA 49-B:5, IV(a) (2003). In accordance with RSA 49-B:5-a, the City filed a certified copy of the preliminary report relative to the proposed charter amendment with the secretary of state, the attorney general and the commissioner of the department of revenue administration for their review "to insure that [the proposed amendment] is consistent with the general laws of this state." RSA 49-B:5-a, I (Supp.2006) (amended 2008). The secretary of state replied, on behalf of himself, the attorney general's office and the department of revenue administration, that they did not object to the proposed amendment. On July 6, 2009, the City appealed that determination pursuant to RSA 49-B:10, IV (2003).
On August 20, 2009, a petition for declaratory judgment and injunctive relief challenging the legality of the proposed amendment was filed by petitioners Ryan Cashin, Richard Rothwell, Joseph Gallagher, David McCloskey, Benjamin Clifford, Kathy Desjardin, Scott Nichols, Maxine Mosley, Josiette White, Michael Farley and Bonnie Doherty (the Cashin petitioners), on their own behalf as voters and
On September 8, 2009, New Hampshire Tax Advantage Coalition (NHTAC) moved to intervene in both the City's appeal and the declaratory judgment action. On September 15, 2009, the trial court authorized an interlocutory transfer without ruling to this court of certain questions in the City's appeal. Subsequently, the trial court consolidated the declaratory judgment action with the City's appeal and the interlocutory transfer statement was supplemented accordingly.
The trial court transferred the following questions of law:
(Capitalization omitted.) On October 6, 2010, we issued an order amending the interlocutory transfer statement, on our own motion, to add the following question of law:
(Capitalization omitted.) We also ordered supplemental briefing to address the added question.
On appeal, the City and the Cashin petitioners argue that the charter amendment: (1) is preempted by the comprehensive statutory scheme governing the budget process for cities; (2) interferes with the mayor's duty to present a budget to the board of mayor and aldermen; and (3) exceeds the scope of a permissible charter amendment under RSA chapters 49-B and 49-C. In addition, the City argues that the amendment impermissibly impairs the powers and duties of the City's elected body under RSA chapters 44 and 47 and the Cashin petitioners argue that, like the amendment at issue in City of Claremont v. Craigue, 135 N.H. 528, 608 A.2d 866 (1992), the charter amendment here "derogates from the plenary authority granted to the governing body of a city rather than the voters." In their supplemental briefs, the City and the Cashin petitioners argue that the charter amendment also conflicts with RSA 49-C:12, I.
The NHTAC argues that the charter amendment "is simply a change to the structure and formation of the City's annual budget procedure." It further argues that RSA 49-C:23 merely "lay[s] out a basic structural form for a city charter to follow" and asserts that nothing in that statute prohibits the City from placing a spending cap in its charter. In its supplemental brief, NHTAC argues that the charter amendment does not conflict with RSA 49-C:12, I.
The State agencies note that while they reviewed the proposed charter amendment as required by statute, see RSA 49-B:5-a, I, they "do not advocate for or against the proposed Charter Amendment, and do not have a direct interest in the outcome of this matter." They nevertheless filed a brief offering "their interpretation of the
We begin with the first transferred question, regarding preemption by RSA 49-C:23. Both the City and the Cashin petitioners argue that RSA 49-C:23 invalidates the charter amendment at issue. The City frames its argument in terms of preemption, while the Cashin petitioners argue that the City lacked authority to adopt the amendment. Our cases examining the validity of municipal charter amendments have employed both modes of analysis, sometimes interchangeably. See, e.g., Town of Hooksett v. Baines, 148 N.H. 625, 626, 813 A.2d 474 (2002) (stating that resolution of the issue of "whether the town has the authority under RSA chapter 49-B to impose term limits upon elected officials . . . necessarily involves an inquiry into whether the town's ability to enact such legislation has been preempted by either State statute or constitutional provision"). However, since the transferred question couches the issue in preemption terms, we elect to address it under that rubric.
"The preemption doctrine flows from the principle that municipal legislation is invalid if it is repugnant to, or inconsistent with, State law. Thus, preemption will occur when local legislation either expressly contradicts a statute or otherwise runs counter to the legislative intent underlying a statutory scheme." Town of Hooksett, 148 N.H. at 627, 813 A.2d 474 (quotation and citation omitted). The preemption issue is, then, "essentially one of statutory interpretation and construction." Lakeside Lodge v. Town of New London, 158 N.H. 164, 168, 960 A.2d 1268 (2008) (quotation omitted). Accordingly, we apply the following well-settled rules:
Coco v. Jaskunas, 159 N.H. 515, 518-19, 986 A.2d 531 (2009) (quotations and citation omitted).
The statutory scheme at issue implements the so-called "home rule amendment," Part I, Article 39 of the State Constitution. City of Manchester Sch. Dist. v. City of Manchester, 150 N.H. 664, 666, 843 A.2d 966 (2004). That amendment provides in part:
N.H. CONST. pt. I, art. 39.
The legislation implementing the home rule amendment is embodied in RSA chapters
We have noted that "RSA chapter 49-C sets forth an exhaustive blueprint for [the mayor-board of aldermen] form of government." City of Manchester Sch. Dist., 150 N.H. at 668, 843 A.2d 966. In particular, it mandates that the city's charter contain certain provisions relating to the city's budget. See RSA 49-C:23 (Supp.2009). RSA 49-C:23 provides in part:
RSA 49-C:23.
The Cashin petitioners assert that the spending cap in the charter amendment conflicts with this provision, in particular, with the duty and sole authority of the City's elected body to approve the City's budget. NHTAC contends that this provision is "nothing more than a structural plan or roadmap for the city to follow when initiating its own form of budget ordinances the city should follow when putting its charter together" and does not set forth "all inclusive legislative mandates preempting the city from establishing spending restrictions on its government." For purposes of this appeal, we need not determine how extensive or "inclusive" the mandates of RSA 49-C:23 are; we previously determined, however, that this provision "makes explicit the legislature's intent that the [city's elected body] approve the annual budget." City of Claremont, 135 N.H. at 531, 608 A.2d 866. Accordingly, we must examine whether the proposed amendment conflicts with this intent.
NHTAC and the state agencies argue that a spending cap is not inconsistent with the board of mayor and aldermen's authority to adopt a budget because that body retains authority to override the cap by a two-thirds majority. NHTAC also asserts that "[t]here is nothing in state law that forces the City to pass its budget by a
RSA 49-C:12, I, provides:
RSA 49-C:12, I; see RSA 45:9 (2003) (stating mayor shall have no vote in action of board of aldermen "except in case of an equal division."); cf. RSA 49-C:12, II (2003) (city may by charter amendment allow mayor to vote at city council meetings).
The admonition that the mayor may not vote "except in case of equal division" manifests the legislature's intention that aldermanic boards conduct ordinary business by the vote of a simple majority. Other statutory provisions mandating a two-thirds majority in specific instances bolster this conclusion. See N. Singer, Statutes and Statutory Construction 417 (7th ed.2007) ("The force of the maxim [expressio unius est exclusio alterius] is strengthened where a thing is provided in one part of the statute and omitted in another."); cf. State v. Guertin, 89 N.H. 126, 128, 193 A. 237 (1937) (noting that where the legislature used the word "regulate" six times in a statute "with other words limiting its scope, it is to be assumed that the Legislature, when using the word without limitation intended to use it broadly"). For example, RSA 49-C:23 itself directs that a city charter set forth "[p]rocedures for appropriation of funds, after notice and public hearing and by a 2/3 vote, for purposes not included in the annual budget as adopted." RSA 49-C:23, VI (Supp.2009); see RSA 45:9 (2003) (two-thirds majority of board of aldermen required to override mayor's veto); RSA 47:11-a, III (2003) (mass transportation); RSA 47:27, I (2003) (siting of oil refinery in a city); RSA 48:20, III (2003) (establishment of office of director of human services). Thus, as the Cashin petitioners assert, "when the legislature wanted to deviate from the general requirement in RSA 49-C:12, I for a majority vote of a quorum to adopt a measure, it did so by a specific provision for such a super-majority vote."
Having interpreted RSA 49-C:12, I, to require a simple majority vote unless otherwise specified by statute, we conclude that the proposed charter amendment is inconsistent with state law. Because the amendment constrains the board to either abide by the spending cap or act by a two-thirds majority to override it, it conflicts with the board's authority to adopt a budget, see RSA 49-C:23, by the vote of a simple majority, see RSA 49-C:12, I. We conclude, therefore, that the spending cap is preempted by RSA 49-C:12, I, and RSA
Remanded.
BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ., concurred.