Opinion to the House of Representatives

• Citation: 208 A.2d 126,99 R.I. 377
• Parties: OPINION TO THE HOUSE OF REPRESENTATIVES.
• Decision Date: 11 March 1965
• Court: Rhode Island Supreme Court

Page 126

208 A.2d 126

99 R.I. 377

OPINION TO THE HOUSE OF REPRESENTATIVES.

Supreme Court of Rhode Island.

March 11, 1965.

To the Honorable, the House of Representatives of the State of Rhode Island and Providence Plantations

We have received from Your Honors a resolution requesting, in accordance with the provisions of sec. 2 of art. XII of amendments to the state constitution, our written opinion upon the following question pursuant to House Resolution No. 1080:

'Are the provisions of chapter 131 of the public laws, 1959, entitled 'An act providing for historic area zoning,' now known and cited as chapter 45-24.1 of the general laws, as amended by chapter 152 of the public laws, 1963 and by chapter 220 of the public laws, 1964, and the ordinances ordained by any city or town pursuant to the provisions thereof, constitutional?'

The inquiry is twofold, asking, first, whether the provisions of chap. 24.1 of title 45 are constitutional and, second, whether ordinances enacted pursuant thereto are constitutional. It is to be noted that the statute is, in its nature, enabling legislation in which the general assembly purports to delegate to city and town councils authority to enact ordinances for the purpose of regulating the construction, alteration, repair, moving or demolition of structures that have 'historic and architectural value.' It confers also upon such municipal legislatures authority to create historic district commissions, the function of which is to administer the ordinance, and provides for appeals from decisions of such commissions to the zoning board of review and subsequently to this court by way of certiorari. The statute was enacted as P. L. 1959, chap. 131, and has been twice amended, the substance of those amendments being without materiality here.

We assume the inquiry as to the constitutionality of ordinances enacted pursuant to the statute relates to the propriety of the delegation to city and town councils by the general assembly. We make these general observations in order to emphasize the difficulty involved in attempting to answer this question. Nowhere therein is our attention directed to any specific provision of the statute or to any provision of the constitution that might have been violated by the enactment thereof. It is clear that this circumstance would require us to engage in an exhaustive search of the statute to ascertain whether any provision thereof, taken singly or in combination with any other, exceeds the constitutional limitations on the legislative power or impinges upon any constitutionally protected right of the people. The burden that would thus be assumed is so onerous as to make our undertaking its performance imprudent.

There is, however, another factor which is strongly persuasive that we ought not attempt to answer the question propounded by Your Honors. This is the narrow purpose for which the pertinent provision of sec. 2 of art. XII of amendments was included within the constitution and the obvious adverse effect of any undue expansion of that purpose by judicial fiat on the constitutional separation of the powers of government. One need not be clairvoyant to foresee the evil that could result from an intrusion by this court into those functions of government constitutionally committed to the co-ordinate branches thereof under the guise of answering questions propounded pursuant to sec. 2 of art. XII.

In our recent Opinion to the Governor, R. I., 191 A.2d 611, we discussed at some length the purpose of that section and the limitations thereof on the practice of seeking and giving advisory opinions. At page 614 of that opinion we said: 'It is our opinion that this requirement to give advisory opinions was included in the constitution in order to enable the executive and legislative departments to more effectively discharge particular duties that are textually committed to them by the constitution.' We went on to note that the constitution in sec. 1 of art. IV provides in part that the general assembly 'shall pass all laws necessary to carry this constitution into effect.'

In that opinion at page 614 we referred again to...