Order of St. Benedict in Portsmouth v. Town Council of Town of Portsmouth, 9676

• Citation: 125 A.2d 150,84 R.I. 503
• Decision Date: 23 August 1956
• Docket Number: No. 9676,9676
• Parties: ORDER OF ST. BENEDICT In PORTSMOUTH, Rhode Island, v. TOWN COUNCIL OF the TOWN OF PORTSMOUTH. Ex.
• Court: Rhode Island Supreme Court

Page 150

125 A.2d 150

84 R.I. 503

ORDER OF ST. BENEDICT In PORTSMOUTH, Rhode Island, v. TOWN COUNCIL OF the TOWN OF PORTSMOUTH.

Ex. No. 9676.

Supreme Court of Rhode Island.

Aug. 23, 1956.

Cornelius C. Moore, John C. Burke, Salvatore L. Virgadamo, Frederick W. Faerber, Jr., Francis J. Boyle, Newport, James E. Murphy, Warren, for appellant.

Letts & Quinn, Providence, Edward M. Dolbashian, Town Solicitor, Portsmouth, for appellee.

ANDREWS, Justice.

This proceeding was commenced by the appeal of the Order of St. Benedict in Portsmouth, Rhode Island, hereinafter called the Order, to the town council of the town of Portsmouth, hereinafter called the council, from the order of the council granting a building and petroleum storage permit to the Commerce Oil Refining Corporation, a foreign corporation.

The council denied the appeal and the Order appealed therefrom to the superior court. Thereupon that court, after denying certain motions made by the Order, granted the council's motion to dismiss the appeal. It is to review these adverse rulings that the Order has brought the case here on its bill of exceptions.

The case turns upon the construction of sections 49 and 52 of chapter 333, General Laws 1938, the pertinent parts of which read as follows:

' § 49. Any person aggrieved by any order or decree of a town council may appeal therefrom to the superior court for the county in which such town is located, within 40 days next after such order or decree shall have been made, unless other provision be made.'

'Sec. 52. Town and city councils and the representative council of the city of Newport may from time to time make and ordain all ordinances and regulations for their respective towns and cities, not repugnant to law, as they may deem necessary, regulating the manner of constructing and equipping of all buildings and other structures within said town or city which may be erected, altered or repaired after the passage of such ordinance. Said town, city or representative council shall have the power to appoint an inspector of buildings and define his duties in the issuance of building permits and in the administration and enforcement of such ordinance.'

There is nothing in the rest of this section that provides for an appeal. Section 49 substantially in its present form has been in our statutes since 1867, but sec. 52 was not added to chap. 333 until the enactment of P.L.1950, chap. 2525.

In Walsh v. Town Council 1892, 18 R.I. 88, 25 A. 849, which involved an appeal of a highway commissioner, the court at page 89 of 18 R.I., at page 850 of 25 A. held that the pertinent section, which is now § 49, was not intended to confer a right of appeal but merely fixed a time limit 'within which such right, which is elsewhere specifically given, could be exercised.' At page 90 of 18 R.I., at page 850 of 25 A., the court further pointed out: 'An appeal is a purely statutory right, and lies only in cases where the statute expressly provides for it * * *.' In that case Walsh was discharged under a provision which is now § 12 of chap. 333, which reads as follows:

'In case of the incapacity of any surveyor of highways, or of any tyrannical and unwarrantable exercise by him of the powers of his office, the town council may, after giving him such notice as they may deem reasonable, either suspend or altogether remove him from his office and appoint another in his place.'

In that case the court stated at page 91 of 18 R.I., at page 850 of 25 A.: 'An examination of the several statutes relating to the powers and duties of town councils also shows, that as to very many of the judgments and decrees which they are authorized to render and make, no appeals are provided for. And it is evident that the judgment or decree which they have power to render and make under the provisions of said section 12, of chapter 38, is one of that class. It is a matter connected with the internal police and administrative government of a town, over which the legislature has given exclusive jurisdiction to the town council.'

Section 49 has been before this court in several cases since the Walsh decision and that case has been consistently followed. In the last of these cases, Aldee Corp. v. Flynn, 1946, 72 R.I. 199, 49 A.2d 469, the town council had denied an...