State v. Nelson

• Decision Date: 16 July 1910
• Citation: 77 A. 170,31 R.I. 264
• Parties: STATE v. NELSON.
• Court: Rhode Island Supreme Court

77 A. 170

31 R.I. 264

STATE

v. NELSON.

Supreme Court of Rhode Island.

July 16, 1910.

Case Certified from Superior Court, Washington County; Charles F. Stearns, Judge.

George Nelson was convicted of larceny, and the cause was certified from the Superior Court on constitutional questions. Questions answered.

William B. Greenough, Atty. Gen., and Harry P. Cross, Second Asst. Atty. Gen., for the State. Percy W. Gardner, for defendant.

DUBOIS, C. J. This is a criminal complaint brought by George A. Griffin of South Kingstown in the county of Washington, in the name and behalf of the state, wherein it is charged that the defendant "did within certain tidewaters, to wit, Point Judith pond, so called, certain shellfish of the property of the said George A. Griffin, to wit, one peck of oysters, then and there being found upon a certain tract or parcel of land covered by the waters of Point Judith pond and which said tract or parcel of land, so covered as aforesaid, is by the said town of South Kingstown leased to the said George A. Griffin, unlawfully, willfully, and wrongfully, take and carry away from the said tract or parcel of land, without the permission of the said George A. Griffin, lessee as aforesaid, first being had, and obtained against the statute and the peace and dignity of the state." Upon arraignment before the district court of the second judicial district, the defendant pleaded not guilty, and upon trial was found guilty by said court and the defendant appealed to the superior court, wherein upon trial he was found guilty by a jury.

In the trial before the jury the constitutionality of certain laws was brought in question and the following constitutional questions were certified to this court, as appears by the certificate thereof, which reads as follows:

"In the above-entitled cause, the constitutionality of section 3 of chapter 896 of the Public Laws of the state of Rhode Island, passed February 8, 1901, as amended by section 3 of chapter 897 of said Public Laws, having been brought in question in the trial of said cause in this court on an objection to the admission of testimony, and the defendant in said cause having been found guilty, it is hereby ordered that the following constitutional questions, together with the record of the case and so much of the transcript of the testimony as pertains to the constitutional question, shall be certified and transmitted forthwith to the Supreme Court for decision.

"Question 1. Is section 3 of chapter 896 of the Public Laws of the state of Rhode Island, passed February 8, 1901, as amended by section 3 of chapter 897 of said Public Laws, which authorizes the leases by virtue of which complainant claims property in the oysters taken by the defendant, in conflict with section 17 of article 1 of the Constitution of the state of Rhode Island, in that it provides for regulating the shell fisheries in Point Judith pond by leasing the land in the town of South Kingstown, covered by the waters of said pond at low tide, for the benefit of said town of South Kingstown, or the district of Narragansett as the case may be, rather than for the benefit of the people of the state of Rhode Island as a whole?

"Question 2. Is section 3 of chapter 896 of the Public Laws of the state of Rhode Island, passed February 8, 1901, as amended by section 3 of chapter 897 of said Public Laws, which authorizes the leases by virtue of which complainant claims property in the oysters taken by the defendant, in conflict with section 2 of article 4 of the Constitution of the state of Rhode Island, for the reason that it delegates the power to regulate the shell fisheries in Point Judith pond in South Kingstown to the town council of the town of South Kingstown?

"Question 3. Is section 3 of chapter 896 of the Public Laws of the state of Rhode Island, passed February 8, 1901, as amended by section 3 of chapter 897 of said Public Laws, which authorizes the leases by virtue of which complainant claims property in the oysters taken by the defendant, in conflict with section 17 of article 1 of the Constitution of the state of Rhode Island, because said section 3 permits the leasing of so much of the land covered by the waters of said Point Judith pond at low tide as He within the limits of said town, without reserving any part thereof for a free and common oyster fishery?

"Question 4. Is section 3 of chapter 890 of the Public Laws of the state of Rhode Island, passed February 8, 1901, as amended by section 3 of chapter 897 of said Public Laws, which authorizes the leases by virtue of which complainant claims property in the oysters taken by the defendant, in conflict with section 17 of article 1 of the Constitution of the state of Rhode Island, in that it provides for the creation by lease of private and several shell fisheries in said Point Judith pond?"

Pub. Laws, e. 896, passed February 8, 1901, reads as follows:

"Chapter 896.

"An act authorizing the town of South Kingstown and the district of Narragansett to open and maintain a breachway or channel between Point Judith pond and the ocean, and to protect the shell fisheries therein.

"It is enacted by the General Assembly as follows:

"Section 1. The town of South Kingstown and the district of Narragansett are hereby authorized and empowered to cause a breachway or channel to be opened between Point Judith pond and the ocean and to keep and to protect such breachway or channel so opened.

"Sec. 2. Said town and said district are each hereby authorized and empowered to appropriate and use for the purposes above mentioned such sum or sums of money as they may deem necessary or advisable, not to exceed twenty-five thousand dollars, respectively, and to hire said sum or...