I do not dissent from the result of the foregoing opinion of the court in so far as that result conforms with my view that the proper construction of said Chapter 1914 of the Public Laws is that no person in the position of the appellant shall be held accountable and punishable for the violation of any order of the Board of Purification until after he has had an opportunity by appeal to obtain a decision of this court upon the legality and reasonableness of such order. I think, however, it should appear that the court is mindful of the effect of its decision. The motion of the Board of Purification which has been granted is that the appeal of the petitioner be dismissed on the ground that this court has no jurisdiction in the premises. The order appealed from was one establishing general rules and regulations to prevent the discharge or escape of petroleum and like substances into the public waters. In support of the motion to dismiss it was urged that the order establishing said rules and regulations was not an appealable order but that the rules and regulations established thereby were advisory merely. The court has adopted this view of the statute and has declared that the rules are "admonitory in character" and that the appellant could not be prosecuted for acts contrary to such rules, but that a special order must first be entered against it by the board after notice and hearing, from which special order an appeal may be taken to this court and the legality and the reasonableness of the order here determined.
From an examination of Section 8 of the act under the provisions of which the board entered its order establishing said rules it appears quite probable that the General Assembly intended to confer upon the board power to establish effective and enforceable general rules to prevent the discharge or escape of petroleum and like substances into the public waters. It is true that the General Assembly may have nullified the intent manifested in this section by provisions appearing elsewhere in the act; but from an examination of Section 8 alone it is hardly probable that the elaborate *Page 342 procedure therein provided for notice to interested persons, hearing of such persons, and service upon them of the order establishing the rules was deemed necessary by the General Assembly to permit the board to publish a set of merely advisory and admonitory rules, or that the General Assembly would have provided explicitly that a violation of the order establishing said rules should be punished as provided in the section prescribing penalties if said rules were not obligatory.
It is not unlikely that the board in entering its order establishing said rules believed that it was making general regulations which it might enforce in carrying out the purpose for which the board was created. That is indicated by the claim of the board made at the beginning of this proceeding, viz., that if the operation of said rules should be stayed pending the appeal all the functions of the board would thereby be suspended. That claim of the board with reference to the vital nature of said rules appears to be inconsistent with the position that they are merely advisory and admonitory.
From an examination of the act in question there appears a number of provisions from which the appellant might naturally believe that said rules were enforceable against it and that the order establishing them was appealable. Throughout the act it appears that the board acts only through the entry of "orders." Section 8 provides that the board may "by order" establish rules and regulations to prevent the discharge or escape of petroleum and like substances into the public waters. Desiring to enter an order establishing such rules the board must grant a hearing thereon to all persons interested, first give public notice of said hearing, and must give thirty days' special notice of the hearing by registered mail to each interested person who has, in compliance with the provisions of the section, registered with the board. This registration the appellant made. After hearing the board may by order establish rules and regulations and it must by registered mail serve *Page 343 the order upon the interested persons who have registered with it. Service of the order in question was made upon this appellant. Section 12 of said act, among other things, provides that "Any person aggrieved by any order of the board may appeal to the supreme court for a reversal thereof on the ground that the same is unlawful or unreasonable. The person prosecuting such appeal shall within thirty days from the service of the order appealed from file a petition with the clerk of the Supreme Court setting forth the grounds upon which it is claimed that the order is unlawful or unreasonable." In the face of these explicit provisions the appellant not unreasonably assumed that if it desired to question its obligation to regulate its extensive business in conformity with such rules and if it wished to contest their reasonableness and legality it must appeal in accordance with the provisions of Section 12. It could not safely assume that the explicit provisions of Sections 8 and 12 were limited and controlled by the rather obscure provisions of Section 7. The position of this appellant is that said rules are not binding upon it because they are unreasonable and illegal. It will probably be surprised to learn that through the decision upon the motion to dismiss its appeal it has obtained all that it sought by the appeal, viz., a decision that said rules are not obligatory upon it, though for the reason that they are merely admonitory, and that as to anything contained in said rules the appellant may with safety await the entry of a special order against it by the board, which order can only be entered after hearing and from which order it may appeal to this court and then contest the legality and reasonableness of such order.
If the order establishing the rules in question is not an appealable order then the question of whether or not the appellant is a person aggrieved is entirely without pertinency. If the rules had been held to be effective and enforceable when approved by us, for the violation of which the appellant might be punished, and if it had been held that the order establishing such rules was the subject of appeal *Page 344 then the appellant was clearly a person aggrieved. The appellant is possessed of a tract of land extending for about two miles along the shore of the Providence river, the same being navigable water. On this land it carries on a very extensive business, dealing in petroleum, gasoline, kerosene and like substances, receiving said substances in its ships at its wharves and storing them in large quantities on and near the bank or shore of said Providence river and on its wharves along said river. The position of the appellant is not that it is not violating the rules in question but that while it intends to observe all the laws of the State and all orders of said board, the reasonableness and legality of which have been approved by this court, nevertheless each day in the reasonable prosecution of its business it is violating the rules in question. The general ground of the objection of the appellant to said rules is that it is the plain purpose of the act to guard against the pollution of the public waters, whereas said rules create offences not arising out of the pollution of the public waters but from the mere existence of conditions upon the appellant's property which makes possible the escape of any petroleum into the public waters, however small the quantity and however inadequate to pollute the waters, and notwithstanding the reasonable care of the appellant in the conduct of its business as now carried on. One rule prohibits the escape of any petroleum into the public waters. The appellant claims that unless it radically changes its methods of business there is the possibility at all times, in spite of reasonable care on its part, that a small quantity may be washed into the water, far less in amount however than would result in polluting said water. Another rule prohibits the depositing of petroleum along the shore or on the appellant's wharves where "by ordinary or high tide or by storms or floods or otherwise" it is likely to be washed into the public waters. The appellant in the prosecution of its business does store petroleum along its water front in such position that if as the result of extraordinary flood or storm or other unusual happening *Page 345 any of the storage receptacles should be injured the contents would be likely to be washed into said water. The rules prohibit the pumping of bilge water from its ships or the washing of its ships whereby "any petroleum" or like substance shall be liable to escape into the public waters. The rules require the appellant to post and keep posted at its own expense copies of the rules in question at each of its wharves and at each entrance to each of its parcels of land which are of the description specified in the rules. If the claim of the respondent is true that the observance of said rules interferes with the ordinary use of its property in the conduct of its business and places a burden on it involving pecuniary expense the appellant comes within the definition of a person aggrieved which has been adopted in this State. The appellant is aggrieved by an order which "operates on its rights of property" and bears directly upon its interest and imposes upon it burdens and obligations. Tillinghast v. BrownUniversity, 24 R.I. 179. If, however, the order establishing the rules is not appealable, and the rules are not enforceable against the appellant, then the question of whether or not the appellant is a person aggrieved is entirely immaterial.
The fact that said rules may be regarded as quasi legislative is entirely beside the question before us. The appellee's motion calls upon us to determine whether the order establishing the rules is appealable under the provisions of the act. It is not an answer to say that the rules are quasi legislative. It is within the power of the General Assembly to give an appeal to this court from such order whether the rules established are legislative or judicial. If upon construction of the act we should find that an appeal from an order establishing rules was therein provided, such construction would not be affected by the determination that the rules were administrative, judicial or quasi legislative. The right of appeal exists or does not because the statute gives it or fails to give it, and not because the rules may be denominated as of one kind or another. *Page 346
No assistance in construing the act before us is derived from the opinion in Nelson v. State Board of Health,186 Mass. 330. In that case the court held that the action of the State Board of Health in adopting certain rules and regulations was not the subject of appeal. The court decided and an examination of the act, under the authority of which said rules and regulations were adopted, discloses that no appeal from such action had been given by the terms of the act.
An examination of the Rhode Island act now under consideration clearly shows a legislative intent that a person in the appellant's situation shall not be held liable for the violation of any order of the board until after he has had an opportunity by appeal to obtain the determination of this court upon the reasonableness and legality of such order. As this is the result of the Court's opinion I do not dissent from that result.
RATHBUN, J., concurs in opinion of SWEETLAND, C.J.