71 A. 449 | R.I. | 1908
The complaint in this case charges a violation of a certain ordinance of the town of Lincoln, in these words and figures, viz.: that the respondent "did then and there on the tenth day of May, 1907, permit and suffer to be done on her land, within said town, work and labor in or about the construction of a building without a permit, against an ordinance of Lincoln, aforesaid, being section 3 of Chapter 8, of said ordinances, and against the Statutes and the peace and dignity of the State;" and after being adjudged guilty, the respondent has moved in arrest of judgment on the ground that the town is without legislative authority to enact the ordinance in question, without otherwise questioning the sufficiency of the charge, and the case has been certified here under the provisions of section 478, C.P.A.
The ordinance is as follows: "SEC. 3. Every person, firm or corporation that shall do or cause to be done, and every owner of land, who shall permit or suffer to be done on said land, within this town, any work or labor of any kind whatsoever in or about the construction or reconstruction of any building without a permit, shall be fined not less than two nor more than twenty dollars or be imprisoned not exceeding ten days for each offense; and every day's violation of any of the provisions of this chapter after the service of the warrant issued on the first complaint thereof shall be deemed a separate offense and shall subject the offender to the penalties hereinbefore enumerated."
It is conceded that the town of Lincoln has no special statutory authority to enact building regulations, and that the validity of the ordinance must depend upon the concluding *342 paragraph of section 21 of Chapter 40, General Laws, which is as follows: "and, generally, all other ordinances, regulations and by-laws for the well-ordering, managing and directing of the prudential affairs and police of their respective towns not repugnant to the constitution and laws of this state, or of the United States."
There are two objections to this ordinance, either of which is fatal to its validity. The first is an entire lack of legislative authority to enact building regulations, inasmuch as the statute above cited clearly does not confer such authority; and the second is the practically unlimited power assumed by the town council in this ordinance, such as was thus characterized inState v. Tenant,
In like manner, in Bostock v. Sams,
The decision of the court, therefore, is that the ordinance in question is ultra vires and void, and that the motion in arrest of judgment should be granted; and the papers in the case will be sent back to the District Court of the Eleventh Judicial District, with this decision certified thereon.