State v. Albro, 10859
| Citation | 231 A.2d 1,102 R.I. 410 |
| Decision Date | 26 June 1967 |
| Docket Number | No. 10859,10859 |
| Parties | STATE v. Lee ALBRO. Ex. |
| Court | United States State Supreme Court of Rhode Island |
This is a criminal complaint charging the defendant with failing to obtain a permit to locate a certain single trailer for use as living quarters in violation of an ordinance adopted by the town council of the town of West Greenwich on the purported authority of P.L.1960, chap. 11.
In the district court of the fourth judicial district, out of which the warrant issued, defendant filed a motion to quash the complaint on the grounds, inter alia, that the enbling act constitutes an invalid delegation of the legislative power vested in the general assembly and that the ordinance adopted pursuant to said enabling act is ultra vires of the legislative power purportedly delegated.
Counsel for defendant and the town solicitor submitted memoranda to the justice of the fourth district court who concluded that constitutional questions of doubt and importance had been raised so affecting the merits of the controversy as to warrant their certification to this court for determination, pursuant to the provisions of G.L.1956, § 9-24-27, as amended.
It is established that on March 11, 1964, the West Greenwich town council adopted an ordinance which provides: 'No person shall locate any trailer, mobile home or house car, either for storage or for use as living quarters on any land in the Town of West Greenwich, except in a trailer park, without first obtaining the written permission of the owner of the land and a permit from the West Greenwich Town Clerk as authorized by the Town Council.'
On October 1, 1964, defendant located a single trailer for use as living quarters on land situated on the westerly side of Hopkins Hill road in the town of West Greenwich, without first obtaining a permit as required by the terms of the March 11, 1964, ordinance. Thereafter, on November 24, 1965, the West Greenwich chief of police made complaint before the justice of the fourth district court having jurisdiction over misdemeanors committed within the town of West Greenwich; a warrant issued, and on a motion to quash and dismiss, as aforesaid, made by defendant, the validity of the ordinance became a threshold issue in the case.
In memoranda submitted at the request of the district court justice, the court was advised that several towns had adopted similar ordinances on the authority of identical enabling acts, and the parties in their briefs and oral arguments in this court suggest that the existence of such other ordinances lends added importance to the questions of doubt and importance certified by the justice of the fourth district court. Be that as it may, public interest alone, however great, would not warrant certification of a question of doubt and importance to this court within the intendment of § 9-24-27. It has long been established that there is no warrant for a justice of the superior court or of a district court to certify a question to this court unless at the time of certification the case is before him for a ruling or decision on a particular phase of the case which necessarily involves a determination of the question of law that he certified. Tillinghast v. Johnson, 34 R.I. 136, 82 A. 788, 41 L.R.A.,N.S., 764; Easton v. Fessenden, 63 R.I. 11, 6 A.2d 714; State v. Weiner, 97 R.I. 506, 199 A.2d 120.
In the instant proceedings, however, defendant's motion to quash and dismiss the complaint, predicated as it was at least in part on the question of the constitutionality of an act of the general assembly, presented the district court justice with a justiciable issue warranting certification.
The March 11, 1964, ordinance with a violation of which defendant is charged, was adopted by the West Greenwich town council on the asserted authority of P.L. 1960, chap. 11. It is entitled:
'An Act to Empower the Town Council of the Town of West Greenwich to Control the Use and Location of House Trailers and Mobile Homes, when Stationary, Within Said Town, and are Being Used for Dwellings, Permanent or Temporary, and also to Empower Said Town Council to License and Restrict the Location and use of Trailer Parks in Said Town,'
and provides:
In light of the issues presented by defendant's motion, the justice of the fourth district court certified the following question:
'Does the Town of West Greenwich have the power to require a license for and to regulate the location and use as living quarters of single trailers by virtue of Chapter 11 of the Public Laws of 1960, and as set forth in the ordinance adopted by the Town Council of said West Greenwich on March 11, 1964, a certified copy of which is filed herewith?'
The heretofore quoted portion of sec. 2 of the ordinance is followed by subdivisions designated as parts 1 and 2. Part 1 relates to the temporary use of a trailer for residential purposes and the cost assessed for the permit required is $1. Part 2 relates to the permanent use of a...
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