Advisory Opinion to Governor, In re

• Decision Date: 06 August 1974
• Docket Number: No. 74-207-M,74-207-M
• Parties: In re ADVISORY OPINION TO the GOVERNOR. P.
• Court: Rhode Island Supreme Court

Page 641

324 A.2d 641

113 R.I. 586

In re ADVISORY OPINION TO the GOVERNOR.

No. 74-207-M.P.

Supreme Court of Rhode Island.

Aug. 6, 1974.

To His Excellency Philip W. Noel Governor of the State of Rhode Island and Providence Plantations

Pursuant to amend. XII, sec. 2, of the state constitution, Your Excellency has requested our written opinion on seven specific questions which relate to two acts passed by the General Assembly at its January, 1974, session. The two acts are 74-H 7356, Substitute A, which is entitled 'An Act Establishing a State Department of Economic Development,' and 74-H 7788, Substitute A, which is entitled 'An Act Relating to Surplus Federal Property and Property Reverting to the State of Rhode Island.'

The first, 74-H 7356, Substitute A (hereinafter Port Authority Act) established, inter alia, the Rhode Island Port Authority and Economic Development Corporation (hereinafter Port Authority), which is a public corporation created to promote economic development within the state by acquiring and developing real and personal property. The second, 74-H 7788, Substitute A (hereinafter Federal Lands Act), (1) empowers the Port Authority 'to acquire and receive as agent of the State of Rhode Island' certain real and personal property which the federal government has or will declare surplus (hereinafter surplus lands) and dispose of under federal law, and (2) empowers the Governor, with the approval of the State Properties Committee, to transfer, grant, and convey to the Port Authority certain real property, which by virtue of P.L.1939, chap. 696, has or will revert to the state (hereinafter reverter lands). Under sec. 3 of the Federal Lands Act, the Port Authority is authorized to use and dispose of the surplus and reverter lands in accordance with its corporate purposes.

Your Excellency informs us that the Port Authority, in the near future, will have taken all the required steps necessary to perfect its organization and soon thereafter plans to issue bonds and undertake the development of projects pursuant to its charter. In order to discharge Your Excellency's duties as Governor and to enable the Port Authority to become operative, issue bonds, and use and dispose of the surplus lands, reverter lands, and other properties, Your Excellency has requested our opinion on the following questions of law:

(1) Does the capital reserve fund deficiency provision contained in Section 18 of the Port Authority Act, under which the General Assembly in any given year may be asked to restore said fund to the minimum capital reserve fund requirement established for the fund, violate Article XXXI, Section 1, of Amendments to the Rhode Island Constitution in that a state debt is incurred, or a pledge of the faith of the state for the payment of the obligation of others is made, without the consent of the people?

(2) Do the purposes for which the General Assembly enacted the Port Authority Act constitute public purposes, and not local or private purposes, within the purview of Article IV, Section 14 of the State Constitution thereby permitting the General Assembly to approve an appropriation bill submitted by the Governor pursuant to paragraph (d) of section 18 of said Act by a simple majority vote?

(3) Do the provisions of the Port Authority Act constitute a violation of Sections 2 and 10 of Article IV as an unlawful delegation of legislative authority and of Article III as a violation of the distribution of power provision of the State Constitution?

(4) Are the surplus lands described and designated in Section 1 of the Federal Lands Act 'public property' within the purview of Article IV, Section 14 of the State Constitution?

(5) If the answer to question 4 is in the affirmative, does the Federal Lands Act constitute a bill appropriating such 'public property' (i.e. the surplus lands and the reverter lands) within the purview of Article IV, Section 14 of the State Constitution?

(6) If the answers to question 4 and 5 are both in the affirmative, can the Port Authority, after it has received title from the State to said surplus lands pursuant to the authority and directive set forth in the Federal Lands Act validly sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of said surplus lands for such consideration and upon such terms and conditions as it shall determine without each such sale, conveyance, mortgage, pledge, lease, exchange, transfer or other disposition thereof having been assented to by two-thirds of the members elected to each House of the General Assembly as provided for in Article IV, Section 14 of the State Constitution?

(7) Can the Port Authority, upon acquisition of title to said reverter lands pursuant to the authority and directive set forth in the Federal Lands Act, validly sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of said reverter lands for such consideration and upon such terms and conditions as it shall determine without each such sale, conveyance, mortgage, pledge, lease, exchange, transfer or other disposition thereof having been assented to by two-thirds of the members elected to each House of the General Assembly as provided for in Article IV, Section 14 of the State Constitution?

I.

Under sec. 18 ¹ the Port Authority is authorized to establish certain capital reserve funds. This section further provides that each capital reserve fund is required to have a minimum capital reserve. The first question concerns the constitutionality of the capital reserve fund deficiency provision, which is found in para. d of this section.

Section 18(d) provides as follows:

'In order further to assure the continued operation and solvency of the corporation for the carrying out of its corporate purposes, the executive director shall annually, on or before December 1st, make and deliver to the governor a certificate stating the sum, if any, required to restore each such capital reserve fund to the minimum capital reserve fund requirement for such fund. During each January session of the general assembly, the governor shall submit to the general assembly printed copies of a budget including the total of said sums, if any, as part of his budget required to restore each such capital reserve fund to the minimum capital reserve fund requirement for such fund. All sums appropriated by the general assembly for this purpose, and paid to the corporation, if any, shall be deposited by the corporation in the applicable capital reserve fund.' (Emphasis added.)

The question asked is whether this provision violates amend. XXXI, sec. 1, of the state constitution, which provides:

'The general assembly shall have no powers, hereafter, without the express consent of the people, to incur state debts to an amount exceeding fifty thousand dollars, except in time of war, or in case of insurrection or invasion; nor shall they in any case, without such consent, pledge the faith of the state for the payment of the obligations of others. This section shall not be construed to refer to any money that may be deposited with this state by the government of the United States.'

This question was considered in Opinion to the Governor, 112 R.I. 151, 308 A.2d 809 (1973). There we were asked whether the capital reserve deficiency fund provision of the Rhode Island Housing and Mortgage Finance Corporation Act ² violated amend XXXI, sec. 1. We advised that the capital reserve fund deficiency provision of that act did not constitute the incurrence of a debt or pledge of the state's credit because the General Assembly retained its right to concur or disagree with the Governor's budgetary recommendations. Id. at 157-58, 308 A.2d at 812.

The capital reserve fund deficiency provision found in sec. 18(d) of the Port Authority Act is virtually identical to the one we considered in Opinion to the Governor, 112 R.I. 151, 308 A.2d 809 (1973). There is nothing in this act which would cause us to change our opinion on the constitutionality of this provision. Accordingly, it is our opinion that sec. 18(d) does not violate amend. XXXI, sec. 1. We, therefore, answer this question in the negative.

II.

Article IV, sec. 14, of the state constitution provides: 'The assent of two-thirds of the members elected to each house of the general assembly shall be required to every bill appropriating the public money or property for local or private purposes.' The second question is whether the purposes for which the Port Authority Act was promulgated are 'public purposes' and not local or private in nature within the scope of art. IV, sec. 14, thereby permitting the General Assembly to approve an appropriation bill submitted to the Governor under sec. 18(d) by a simple majority vote. For the reasons hereinafter expressed, it is our opinion that the purposes set forth in this act are public.

In sec. 2 ³ of the Port Authority Act, the General Assembly has made several findings to support the need for the enactment of this legislation. That section, in its most pertinent parts, reads:

'It is hereby found and declared that there exists in our state a condition of substantial and persistent unemployment and under employment which causes hardship to many individuals and families, * * * increases the public assistance burdens of the state, * * * impedes the economic and physical development of municipalities and adversely affects the welfare and prosperity of the state; that many existing industrial, manufacturing, recreational and commercial facilities in our state are obsolete and inefficient, and dilapidated; that many of these facilities are under utilized or in the process of being vacated, creating additional unemployment; * * * that the drastic curtailment of federal military installations in our state presently being undertaken * * * will further result in additional loss of employment * * *; that unaided efforts of private enterprises have not met and cannot meet the needs of...