In re Opinion of the Justices

• Decision Date: 17 April 1912
• Citation: 83 A. 3,34 R.I. 191
• Parties: In re OPINION OF THE JUSTICES.
• Court: Rhode Island Supreme Court

83 A. 3

34 R.I. 191

In re OPINION OF THE JUSTICES.

Supreme Court of Rhode Island.

April 17, 1912.

Answer to questions submitted by request from the Governor of the State of Rhode Island and Providence Plantations.

April 17, 1912.

To His Excellency, Aram J. Pothier, Governor of the State of Rhode Island and Providence Plantations:

We have received from your excellency a request for our opinion upon the following questions, viz.:

"(1) Are sections 7 and 8 of chapter 238 of the General Laws 1909 unconstitutional and void, because in violation of any provision of the state or federal Constitution, especially article 1, §§ 2, 15, and 16, and article 4, § 2, of the state Constitution, and that portion of article 14 of amendments to the federal Constitution as follows: * * * 'Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'

"(2) If the foregoing question is answered in the negative, is there any constitutional objection to the authorizations and directions in the following resolution now pending in the General Assembly: 'Resolved, that the following proposition be submitted to the people for their approval or rejection at the general election to be held on the Tuesday next following the first Monday In November, 1912: "Metropolitan Park Loan. Shall the General Assembly be authorized and directed to provide for the issue of state bond? not to exceed the amount of three hundred thousand dollars for the acquirement and improvement of real estate for public reservations and parks in the Metropolitan park district of Providence Plantations, the amount thereof expended to be repaid to the state in accordance with the provisions of chapter 238 of the General Laws, these bonds to be issued from time to time in such amounts and upon such terms as the General Assembly may hereafter determine?"

"(3) Does the obligation of repayment of amounts expended either under said chapter 238 and the additions and amendments thereto, or under said resolution, fall upon the state as a whole, or only upon the cities, towns, and voting districts constituting the Metropolitan park district of Providence Plantations?"

In response to these questions, we have the honor to submit the following opinion:

Gen. Laws 1909, c. 238, is the first act in said compilation of the statutes that appears under "Title XXIII, Of Forestry and Parks," and is itself entitled "Of the Metropolitan Park Commissioners." An examination of its provisions discloses the fact, that it deals with the "advisability of laying out ample open spaces for the use of the public," within the Metropolitan park district of Providence Plantations, which includes the cities of Providence, Pawtucket, Central Falls, and Cranston, the towns of East Providence, Warwick, Johnston, North Providence. Lincoln, Barrington, and the voting districts Nos. 3, 4, and 5 in the town of Cumberland; that these open spaces are to be used for exercise and recreation, and for intercommunication between them and adjacent streets and highways. It thus appears that the chapter contemplates the improvement and conservation of the public health by encouraging out of door exercise and recreation in parks and parkways within its most densely populated area. It is therefore apparent that the statute in question was passed by the Legislature in exercise of the police power of the state. In such circumstances, the statute is entitled to a liberal construction, in order that its beneficial influence may not be Impeded.

The seventh and eighth sections of the chapter, towards which our attention is especially directed by the questions under consideration, respectively read as follows:

"Sec. 7. The superior court shall, on the application of the said Metropolitan park commissioners, and after notice to each of the cities and towns hereinbefore designated, appoint three commissioners who shall not be residents of such cities and towns, who shall, after the notice and hearing, and in such manner as they shall deem just and equitable, determine the proportion in which each of such cities and towns shall annually pay money into the treasury of the state for the term of five years next following the year of the first issue of said scrip or certificates of indebtedness, to meet the interest and sinking-fund requirements for each of said years as estimated by the general treasurer of the state, and to meet the expenses of preservation and necessary care of said public reservations as estimated by the Metropolitan park commissioners and certified by them to the general treasurer, and any deficiency in the amount previously paid in as found by said treasurer, and shall return their award into said court; and when said award shall have been accepted by said court the same shall be final and conclusive adjudication of all matters herein referred to said commissioners and shall be binding on all parties. Before the expiration of said term of five years, and every five years thereafter three commissioners who shall not be residents of any of the cities or towns constituting the Metropolitan park district shall again be appointed as aforesaid, with the same powers and duties for the next succeeding term of five years: Provided, that no assessment shall be levied for the purposes of this chapter in any one year upon any city or town in excess of a sum equal to one-half mill on the dollar of the valuation thereof. The superior court shall have jurisdiction in equity to enforce the provisions of this chapter and shall fix and determine the compensation of all commissioners appointed by said court under the provisions hereof.

"Sec. 8. The amount of money required each year from each city and town of the said Metropolitan park district of Providence Plantations to meet the interest, sinking-fund requirements, and expenses aforesaid for each year, and the deficiency, if any, shall be estimated by the general treasurer in accordance with the proportion determined as aforesaid, and shall be included in and made a part of the sum charged in such city or town, and shall be assessed upon it in the apportionment and assessment of its annual state tax. The general treasurer shall in each year give notice to each city and town aforesaid of the amount of such assessment, and each of such cities and towns shall pay its respective assessments, so determined as aforesaid, into the state treasury at the time required for the payment of, and as a part of, its state tax."

The foregoing provisions are not in conflict with the Constitution of Rhode Island, art. 1, § 2, which reads as follows: "All free governments are instituted for the protection, safety and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the state ought to be fairly distributed among its citizens."

In the case of In re Dorrance Street, 4 R. I. 230, Ames, C. J., at page 249, used the following language in reference to the last clause of the foregoing section: "We will not stop to notice the very general language and declaratory form of this clause, setting forth principles of legislation rather than rules of constitutional law, addressed rather to the General Assembly, by way of advice and direction, than to the courts, by way of enforcing restraint upon the lawmaking power. We do not mean to say that a law, purporting to impose a tax or burden of some sort upon the citizen, may not be in its distribution of the burden, both in design and effect, so outrageously subversive of all the rules of fairness as not to come so far within the purview of this general clause as to enable the court to save the citizen from oppression by declaring it to be void. But evidently a wide discretion with regard to the distribution of the burdens of state amongst the citizens was intended to be reposed in the General Assembly by the will of the people, as signified in this clause of the Constitution. The form is 'ought to be'; the word is 'fairly' distributed, not 'equally' even, unless equality be fair, which it is not always in any sense, and never is in some senses; and especially the words are not 'equally upon property,? or words to that effect, as in the Constitution of Louisiana. * * * Indeed, the language in question can hardly be said to impose any restriction upon the Assembly at all, except what would be imposed by the fact of our free institutions, and the general principles of constitutional law, here and everywhere in this country prevalent. Had the Constitution been wholly silent upon this subject, a greater latitude could not have been given by these principles than seems to be studiedly implied in the form, spirit, and general terms of this sentence."

And later, at page 250 of 4 R. I., he uses these illuminating expressions: "All taxation is more or less unfair, and in any proper sense even unequal. Perfect fairness would be to make all those who are benefited by the burdens of the state to bear them, and to extend the burden in due proportion to every person according to this benefit. Take, for instance, the streets of Providence, used by all the inhabitants of the state, nay, of the country, who have occasion to resort hither for business, or pleasure, or instruction. The right of every one of these is as ample to use them, and is as ample, in any way, in them, as that of the rich citizen whose property pays a thousand dollars a year towards the enormous, expense of their maintenance; and yet the law casts the entire expense of their maintenance upon those who happen to reside within the limits of certain jurisdictional lines, altered, from time to time, as convenience may require."

The reasoning employed in the foregoing opinion is applicable to the consideration of the sections of the statute involved in the present inquiry. The question, How shall the burdens of the state be...