Jackvony v. Powel

— 219 — Moss, J. This matter is before us on a certification by the superior court, under general laws 1938, chapter 545, § 6, as amended by public laws 1940, chapter 941, sec. 2, of the question of the constitutionality of public laws 1940, chapter 848. This question arose upon the record in a suit in equity that was begun by a bill of complaint filed by the attorney general of this state, in behalf of Herbert E. Macauley and other citizens thereof, against the three members composing the Easton’s Beach Commission of the city of Newport. The substantial relief prayed for in this bill was that the respondents and their servants and agents be permanently enjoined from erecting or causing to be erected a fence or other barrier on the shore between the high and low, water lines and lying to the south of the property known as Eas-ton’s Beach, situated in and belonging to the city of Newport. Later an amended bill of complaint was filed by the complainant and an answer thereto was filed by the respondents, in which they admitted the allegations of some of the paragraphs of this bill and denied, entirely or with certain qualifications, the allegations of its other paragraphs. From the admitted allegations the following facts appear to be established for the purposes of this cause. The city of Newport is the owner of a certain parcel of land known as Easton’s Beach, located in that city and bounded southerly by land which is owned by the State of Rhode Island and which constitutes a part of the shore of the Atlantic Ocean from the line of mean high tide on the — 220 — north to the line of mean low tide on the south. The respondents were duly appointed as the members of the above-named commission by the representative council of the city of Newport in accordance with public laws 1939, chapter 759, with authority “to rebuild, construct and operate Eas-ton’s Beach.” While the amending act now in question was pending in the general assembly, the respondents, as such commission, publicly stated in writing their intention not only to fence Easton’s Beach, above the high water line, but also, if authorized by the passage of this amending act, to construct and maintain a wire fence, six feet in height, which would follow the extension southerly of the line separating the city of Newport and the town of Middletown and would extend from the line of mean high tide to the line of mean low tide, and to construct and maintain a similar fence at or near the western end of the beach and extending to the line of mean low tide. They also publicly stated that their reason for constructing such fences is “To keep nonresidents from using the beach for nothing and thus protect Newport taxpayers.” The amending act now in question was duly enacted by the general assembly and was approved by the governor of this state on April 22, 1940. It amended sec. 2 of the former act by inserting directly after the first sentence, which simply stated the title of the commission, the following sentences: “Except as otherwise directed by the representative council, said commission shall have control and charge of said beach, including the shores thereof between high and low water marks, and shall operate and manage said beach and all the buildings and facilities thereon. Said beach is hereby defined as that tract of land bounded on the west by the Cliffs, so-called, on the north by Bath Road, on the east by the boundary line between the City of Newport and the Town of Middletown, and on the south by the Atlantic Ocean.” — 221 — By this part of the amending act, if valid, and especially by the language above italicized by us, the commission was given control and charge of the shore, as above defined, to the south of Easton’s Beach and was directed to “operate” that shore, as well as the beach itself. The following further provisions are contained in the amending act. It is provided that the commission shall deliver to the city treasurer of Newport the net income received from the operation of the beach in renting lockers, bathhouses, concessions, rights and privileges, and from all sources connected therewith. It is then provided that the commission “may charge suitable and reasonable fees for admission to any part of said beach, provided, however, that it may exempt residents of said city from the payment of admission fees and registration fees to the beach only.” It is next provided that it shall charge reasonable and suitable fees for admission to and the use of bathhouses, swimming pools, etc., “to the end that the operation of said beach will be self-liquidating and reasonably profitable, considering its investment and the expenses of operation incidental to the same.” (italics ours) All these further provisions were in the original act; but on account of the language, above quoted from the amending act, by which the definition of “Easton’s Beach” was enlarged so as to make it include the shore to the south of the beach proper, they were made to apply, for the first time, to this shore. Therefore, if the amending act be valid, they would have the effect of authorizing the commission to charge fees from the people of the state for admission to such shore and for the use of facilities provided by the commission on such shore and, by so doing, to make a larger profit for the city. By the amending act the following provision was also added to the original act: “Said commission may erect fences on any part of the shore on said beach between high and low water marks.” Immediately following this is a provision which varies only slightly from one in the original — 222 — act, and which states that the commission “shall have power to make such reasonable rules and regulations as it may deem necessary and proper for the care, management, operation, maintenance, protection and improvement of any part of said beach and of any buildings, fences, . . . and other property which may be thereon, from time to time . .. (italics ours) This provision also, if the amending act be valid, would apply to the shore to the south of the beach as well as to the beach itself. It is true that the respondents, in their answer, deny the allegations of the seventh paragraph of the amended bill, wherein it is stated that the proposed fence “will obstruct, interfere with, and prevent the passage of the relator and all other citizens of the state of Rhode Island along the shore between high and low water marks.” Nevertheless, it is evident, from other allegations in the amended bill which are admitted in the answer to be true, that the respondents intended, by the erection and maintenance of fences across the shore if authorized by law, to prevent any inhabitants of the state who are not residents of the city of Newport from passing along the shore proper into that portion thereof which lies in front of Easton’s Beach, as properly defined, unless their reason for entering that portion of the shore is for the exercise of fishing or seaweed removal rights. But whatever the intention of the respondents may be, it is clear that, if the amending act be valid, they may be given, by the city of Newport, the power to prevent any of the people of the state from passing along the shore into that part of it which is to the south of Easton’s Beach. All these matters should be taken into consideration by us in determining whether or not the amending act is valid. It is admitted that sec. 17 of article I of the constitution of this state, ratified in 1843, is as follows: “The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have heretofore been entitled under the charter and usages of this — 223 — state. But no new right is intended to be granted, nor any existing right impaired, by this declaration.” It is asserted in the bill, and denied in the answer, that, by reason of the above-quoted provisions which chap. 848 of the public laws purports to add, by amendment, to sec. 2 of chap. 759 of the public laws, this chapter 848 is null and void as being in violation of the above-quoted provision of our state constitution. On motion by the respondents, this question of constitutionality, thus raised upon the record in this cause, was, by a decree of the superior court, certified to this court for determination, being the question now before us, as above stated. The above provision of the constitution does not define what, at the time of the adoption of the constitution, were “the privileges of the shore” to which the people of the state had been theretofore entitled. But it seems clear to us that there must have been some such “privileges”, which were then recognized as belonging to the people and which the framers and adopters of the constitution intended to change into “rights”, beyond the power of the general assembly to destroy. Among the common-law rights of the public in the shore, which have been frequently claimed by the public or have been described by authors who have discussed the law pertaining to rights in the shore, are rights of fishing from the shore, taking seaweed and drift-stuff therefrom, going therefrom into the sea for bathing, and also, as necessary for the enjoyment of any of these rights, and perhaps as a separate and independent right, that of passing along the shore. From time to time it has been asserted by members of the public that these are rights coming within the description of “privileges of the shore” to which the people of this state, at the time of the adoption of its constitution, had theretofore “been entitled under the charter and usages of this state” ; and that therefore their continuance is guaranteed by the above-quoted section of the constitution. — 224 — But we have found no decision by the supreme court of this state, nor has there come to our attention any decision by any court of Rhode Island while it was a colony, in which it was decided what these privileges were. There are, however, some opinions by this court, dealing with the rights of the people and the powers of the general assembly as to shell fisheries which throw some light on the problem now before us in this cause: The case of State v. Cozzens, 2 R. I. 561 (1850), involved the question of the constitutionality of an act of the general assembly “for the preservation of oysters-and other shell fish within this State”, which provided at what time of the year oysters or clams could be taken from common fisheries and in what quantities and in what manner. It also provided for the appointment of commissioners with power to lease land covered by public waters for private oyster grounds or fisheries, if they were convinced, by personal inspection, that any ground so leased could be used more to the public advantage as a private bed under lease than as a public bed. This court decided that this act was valid, saying, at page 564, with reference to the sections of the act which so provided: “We understand the object of these sections is not the benefit of the lessees of the private bed, but, by holding out motives to them to plant and cultivate oysters, to secure to the public a more abundant supply. In other words, the constitutional right is so regulated as to reserve to the public the greatest benefit.” This language was a recognition of the fact that the constitution protected certain rights of the people as to shell fisheries and was quoted with apparent approval by this court in its opinion in Payne & Butler v. Providence Gas Co., 31 R. I. 295 (1910), at 319, in which it also quoted, with apparent approval, the following statement in its opinion in State v. Medbury, 3 R. I. 138 (1855), at 143, with reference to the same section of the constitution: “This section of the Constitution leaves the rights of fishery and — 225 — privilege of the shore, where they were. It neither diminishes or adds to them . . . In the opinion in the Payne & Butler case this court also pointed out that in at least two instances, which were fully set forth and which occurred in 1822 and 1827, long before the adoption of our constitution, the general assembly granted to certain persons exclusive rights, upon certain terms and under certain conditions, to establish, maintain and operate oyster beds in particular, defined locations. This court therefore held that the above section of the constitution did not take away from the general assembly the power which it had previously exercised over the subject of fisheries ; but that the whole subj'ect of fisheries and of all kinds of shell fish situated within the domain of this state is under the fostering care of the general assembly. We see no reason for disagreeing with that conclusion, which has been followed and applied in later cases. But we have not found, nor has there been called to our attention, any instance in which the general assembly, before the adoption of the constitution, legislated with regard to the privileges of the people of this state in its shores bordering on tidewaters and lying between the- lines of mean high tide and mean low tide, privileges which have been commonly believed to include the above-mentioned privileges of fishing from the shore, taking seaweed and drift-stuff therefrom, going therefrom into the sea for bathing, and of passage along the shore. In deciding the question certified to us in the instant cause, we need to concern ourselves only with the right of passage along the shore; and in that connection it is interesting to note the language of this court in several cases. In Clark v. Peckham, 10 R. I. 35, at page 38, this court said: “That, while the shore itself, and the space between high and low-water mark is public for passage, the riparian owner has a right of access to the great highway of nations, of which he cannot be deprived, is recognized by a great number of cases.”