83 A. 3 | R.I. | 1912
To His Excellency, Aram J. Pothier, Governor of the State of Rhode Island and Providence Plantations:
We have received from Your Excellency a request for our opinion upon the following questions, viz.:
"1. Are Sections 7 and 8 of Chapter 238 of the General Laws, 1909, unconstitutional and void because in violation of any provision of the State or Federal constitution, especially Article I, Sections 2, 15 and 16, and Article IV, Section 2 of the State Constitution, and that portion of Article XIV of amendments to the Federal constitution as follows: . . . `nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'
"2. If the foregoing question is answered in the negative, is there any constitutional objection to the authorizations and directions in the following resolution now pending in the General Assembly:
"`RESOLVED: That the following proposition be submitted to the people for their approval or rejection at the general election to be held on the Tuesday next following the first Monday in November, 1912.
"`METROPOLITAN PARK LOAN.
"`Shall the General Assembly be authorized and directed to provide for the issue of state bonds not to exceed the amount of three hundred thousand dollars for the acquirement and improvement of real estate for public reservations and parks in the Metropolitan Park District of Providence Plantations; the amount thereof expended to be repaid to the state in accordance with the provisions of Chapter 238 of the General Laws. These bonds to be issued from time to time in such amounts and upon such terms as the General Assembly may hereafter determine?' *193
"3. Does the obligation of repayment of amounts expended either under said Chapter 238 and the additions and amendments thereto, or under said resolution fall upon the state as a whole or only upon the cities, towns and voting districts constituting the Metropolitan Park District of Providence Plantations?"
In response to these questions we have the honor to submit the following opinion:
Gen. Laws, 1909, cap. 238, is the first act in said compilation of the statutes that appears under "Title XXIII of FORESTRY and PARKS" and is itself entitled: "Of the Metropolitan Park Commissioners." An examination of its provisions discloses the fact that it deals with the "advisability of laying out ample open spaces for the use of the public," within the Metropolitan Park District of Providence Plantations, which includes the cities of Providence Pawtucket, Central Falls and Cranston; the towns of East Providence, Warwick, Johnston, North Providence, Lincoln, Barrington and the voting districts numbers three, four, and five in the town of Cumberland; that these open spaces are to be used for exercise and recreation and for intercommunication between them and adjacent streets and highways. It thus appears that the chapter contemplates the improvement and conservation of the public health by encouraging out of door exercise and recreation in parks and parkways within its most densely populated area. It is therefore apparent that the statute in question was passed by the legislature in exercise of the police power of the State. In such circumstances the statute is entitled to a liberal construction in order that its beneficial influence may not be impeded. The seventh and eighth sections of the chapter, towards which our attention is especially directed by the questions under consideration, respectively read as follows: "Sec. 7. The superior court shall, on the application of the said metropolitan park commissioners, and after notice to each of the cities and towns hereinbefore designated, appoint three commissioners who shall not be residents of such *194 cities and towns, who shall, after the notice and hearing, and in such manner as they shall deem just and equitable, determine the proportion in which each of such cities and towns shall annually pay money into the treasury of the state for the term of five years next following the year of the first issue of said scrip or certificates of indebtedness, to meet the interest and sinking-fund requirements for each of said years as estimated by the general treasurer of the state, and to meet the expenses of preservation and necessary care of said public reservations as estimated by the metropolitan park commissioners and certified by them to the general treasurer, and any deficiency in the amount previously paid in as found by said treasurer, and shall return their award into said court; and when said award shall have been accepted by said court the same shall be final and conclusive adjudication of all matters herein referred to said commissioners and shall be binding on all parties. Before the expiration of said term of five years, and every five years thereafter, three commissioners who shall not be residents of any of the cities or towns constituting the metropolitan park district shall again be appointed as aforesaid, with the same powers and duties for the next succeeding term of five years: Provided, that no assessment shall be levied for the purposes of this chapter in any one year upon any city or town in excess of a sum equal to one-half mill on the dollar of the valuation thereof. The superior court shall have jurisdiction in equity to enforce the provisions of this chapter and shall fix and determine the compensation of all commissioners appointed by said court under the provisions hereof.
"Sec. 8. The amount of money required each year from each city and town of the said metropolitan park district of Providence Plantations to meet the interest, sinking-fund requirements, and expenses aforesaid for each year, and the deficiency, if any, shall be estimated by the general treasurer in accordance with the proportion determined as aforesaid, and shall be included in and made a part of the sum charged in such city or town, and shall be assessed upon it in the *195 apportionment and assessment of its annual state tax. The general treasurer shall in each year give notice to each city and town aforesaid of the amount of such assessment, and each of such cities and towns shall pay its respective assessments, so determined as aforesaid, into the state treasury at the time required for the payment of, and as a part of, its state tax."
The foregoing provisions are not in conflict with the constitution of Rhode Island, Art. I, § 2, which reads as follows: "All free governments are instituted for the protection, safety and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the state ought to be fairly distributed among its citizens."
In the case of In re Dorrance Street,
"Indeed, the language in question can hardly be said to impose any restriction upon the assembly at all, except what would be imposed by the fact of our free institutions, and the general principles of constitutional law, here and everywhere in this country prevalent. Had the constitution been wholly silent upon this subject, a greater latitude could not have been given by these principles, than seems to be studiedly implied in the form, spirit, and general terms of this sentence." And later at p. 250 he uses these illuminating expressions: "All taxation is more or less unfair, and in any proper sense, even unequal. Perfect fairness would be, to make all those who are benefited by the burdens of the state to bear them, and to extend the burden in due proportion to every person according to this benefit. Take, for instance, the streets of Providence used by all the inhabitants of the state, nay, of the country, who have occasion to resort hither for business, or pleasure, or instruction. The right of every one of these is as ample to use them, and is as ample, in any way, in them, as that of the rich citizen whose property pays a thousand dollars a year towards the enormous expense of their maintenance; and yet the law casts the entire expense of their maintenance upon those who happen to reside within the limits of certain jurisdictional lines, altered, from time to time, as convenience may require."
The reasoning employed in the foregoing opinion is applicable to the consideration of the sections of the statute involved in the present inquiry. The question: how shall the burdens of the state be fairly distributed, is one of a purely legislative character to be answered by the law-making branch of the government in the exercise of a wise and wide legislative discretion, with which the judicial department has no concern, and over which it will not attempt to assume control where the same has been exercised honestly and in good faith and not for the purpose of personal oppression under color of law. As was said by Durfee, C.J., in Cleveland v. Tripp, 13 R.I. at p. 61, et seq: "Without doubt, the propriety of any given tax and the modes in which it shall be *197
apportioned and assessed are legislative matters, with which the courts will not interfere unless the legislature has palpably transgressed some limitation of the constitution. . . . But our constitution is extremely latitudinarian. It contains no restriction except what is implied in the declaration that `the burdens of the State ought to be fairly distributed;' and this declaration, as was said in In the matter of Dorrance Street,
It is apparent from an inspection of the foregoing sections that they make provision for the repayment by the cities and towns within the Metropolitan Park District, to the state, of money advanced and expended by the State in the *199 acquirement and maintenance of public parks and parkways within said district for the general benefit of the public, and the particular benefit of the residents of the cities and towns within said district whose proximity to the parks enables them to enjoy the benefits thereof with the expenditure of less time and money than those less fortunately situated because more remote from these sources of improvement and enjoyment. These are material compensations beyond and in addition to the enhanced value of property in the neighborhood of such public improvements.
The sections alluded to are not in conflict with the Constitution of Rhode Island, Art. IV, § 2, which reads as follows: "Sec. 2. The legislative power, under this constitution, shall be vested in two houses, the one to be called the senate, the other the house of representatives; and both together, the general assembly. The concurrence of the two houses shall be necessary to the enactment of laws. The style of their laws shall be, It is enacted by the General Assembly as follows:" The question, without doubt, is put for the purpose of inquiring whether the general assembly has attempted therein to delegate its legislative power. We do not so understand the provisions of the sections. The commissioners appointed are to hear and determine what proportion of the total amount expended each city and town shall annually pay into the treasury of the state. Manifestly this is not a legislative duty, but is a duty similar to that imposed upon an auditor, as for example, to ascertain and state the assets and liabilities of the firm, including the accounts of the members thereof in the winding up of a partnership, or in the disentanglement of complicated accounts between litigants. As we said in the case of Blais v.Franklin, 31 R.I. at p. 115: "While the act confers on the commissioners certain authority and discretion as to their execution of the law, it does not confer on, or delegate to, the commissioners the power to make the law itself, nor to use any discretion as to what the law shall be." In the present case the proportion that each city and town shall pay is *200
dependent upon the amount of benefits received by it so that the question is largely one of computation involving arithmetical rather than legislative powers. The sections are not in conflict with that portion of Article XIV of amendments to the Federal Constitution which reads as follows: "nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." We presume that the question involving the consideration of the above amendment to the federal constitution is similar to that propounded to us in the case ofBlais v. Franklin, supra, p. 131: "Neither party in interest is heard as to the necessity of building a bridge nor as to the expense of the work or the kind, size or style of the bridge. The only hearing the cities of Pawtucket and Central Falls get is as to the apportionment of the expense." In the statute under consideration no provision is made whereby the cities and towns within the Metropolitan Park District may be heard as to the necessity for parks or parkways therein nor as to the size, style or cost of the same, nor as to the expense of their maintenance. The only hearing they will have will be the one concerning the apportionment of the expense upon them. The answer to this question will be the same as it was in the case last referred to: "There is no merit in this contention. No notice is required to be given property owners or municipal corporations respecting those matters which the legislature itself determines. Spencer
v. Merchant,
"As was said by Mr. Justice Brewer in Williams v.Eggleston,
"`Neither can it be doubted that, if the state constitution does not prohibit, the legislature, speaking generally, may create a new taxing district, determine what territory shall belong to such district and what property shall be considered as benefited by a proposed amendment. And in so doing it is not compelled to give notice to the parties resident within the territory or permit a hearing before itself, one of its committees, or any other tribunal, as to the question whether the property so included within the taxing district is in fact benefited. Spencer v. Merchant,
We see no constitutional objection to the authorization and directions contained in the foregoing resolution, now pending in the general assembly. The people of the state may well authorize the incurring of a state debt by the legislature, the proceeds whereof are to be expended in a well defined portion of the state to be repaid by the cities and towns within which the same has been expended in proportion to the amounts expended therein. Objection has been made that such a resolution is an interference with local self-government, and in support of this contention the cases of Board of Park Commissioners v. Common Council ofDetroit,
In answer to your last question we have the honor to reply that by the terms of said Chapter 238 and of the resolution hereinbefore referred to, the obligation of repayment falls only upon the cities and towns within the Metropolitan Park District of Providence Plantations.
EDWARD CHURCH DUBOIS, CLARKE H. JOHNSON, C. FRANK PARKHURST, WILLIAM H. SWEETLAND, WALTER B. VINCENT.