I concur in the view that the aid of the attorney-general need not be invoked on behalf of the complainants, inasmuch as it is his statutory duty to defend the respondents; and I am of the opinion, also, that the complainants, as taxpayers of the cities of Pawtucket and Central Falls, respectively, are not chargeable with laches and are entitled to petition for the writ, and that Frederick E. Shaw is not a necessary party to this proceeding.
The determination of the remaining questions, however, seems to me to rest upon considerations different from those advanced in the majority opinion.
The principal contention alleged in the petition is that the act of the commission in awarding the contract to construct the bridge to one Shaw, for the sum of $72,856.00, was illegal, null and void, and the petitioners seek to have that action reviewed in this proceeding. Whether this action of the commission is valid or is void depends obviously upon the powers conferred by the act creating it, and this leads to a consideration *Page 267 of the provisions of the act itself, viz., cap. 499, Pub. Laws, which was passed on May 7, 1909, the last day of the last session of the legislature, and is entitled "An Act for the Appointment of a Commission for the Erection of a Bridge between the Cities of Pawtucket and Central Falls." While the purpose of the act as thus expressed by its title seems to be clear and definite, an examination of its provisions shows that some of them are impossible, others incoherent and unintelligible, and others are inadequate for the accomplishment of the purposes aforesaid by this commission.
While in a narrow and technical sense it is true that the exercise of certain specifically alleged and assumed powers is here questioned, yet, because not only of the public nature of the work, but also that it may more clearly appear whether the powers exercised have or have not been granted, it seems not inappropriate to examine certain provisions of this statute, not indeed, with a view to prejudging questions which may hereafter arise in some other proceeding, but to indicate those obvious defects which are unquestionable and which in their totality must necessarily greatly influence, if they do not determine, a conclusion upon the power to do the specific act here questioned.
It was admitted at the hearing that the act was modelled upon Chapter 1332 of the Public Laws, passed June 12, 1894, and providing for the construction of the so-called "Red Bridge," by the city of Providence, over the Seekonk river. A comparison of the two acts is therefore not inappropriate in our inquiry as to the powers and rights conferred by the act creating the present commission.
By the provisions of the Red Bridge act it is specified in the first section that "The City of Providence shall proceed forthwith to construct over the Seekonk river at the site of the present `red bridge,' so-called, a new iron or steel bridge," and then follow directions as to width of travelway and footway, and the load which it shall carry, and many other particulars. By the third section of the act an abutting owner damaged "by any of the work provided herein to be done," including damages arising from change of grade of highway on the approaches to *Page 268 the bridge, is entitled to have the same appraised by commissioners appointed by the appellate division of the Supreme Court, with a right of appeal from said commissioners and a trial by jury, "and the amount so awarded by said court with costs shall be forthwith paid by said city." The fourth section provides that "The expense of all of said work of construction, including the removal of the present bridge, together with the damage and costs mentioned in section three of this act be paid by the City of Providence in the first instance," etc. By the fifth section it was provided that "When such bridge shall be completed and the full cost thereof, including the damages and costs mentioned in section three of this act, shall have been ascertained," a statement thereof is to be filed in the office of the clerk of the appellate division of the Supreme Court, together with an application for the appointment of a commission to apportion the expense upon the cities and towns benefited. The sixth section provides for the appointment by the court of such a commission of three persons "who shall, after due notice to all parties interested and hearing thereon, . . . determine, award and name the proportion of the total amount expended by the said city under this act, including the damages and costs mentioned in section three of this act . . . which each of the said cities and towns shall pay. . . . "The expenses and fees of the commissioners of apportionment allowed by said court shall be paid in such manner and by such parties as the said court shall determine and award."
Chapter 499, Public Laws, supra, provides, in sections 1, 2, and 3, as follows: "SECTION 1. Within thirty days after the passage of this act the governor shall appoint three suitable and disinterested persons, and they and their successors are hereby constituted `A commission for the erection of a bridge between the cities of Pawtucket and Central Falls over the Blackstone river, known as the North Main street bridge.'
"Any vacancy in said commission, by resignation or otherwise, shall be filled by the appointment of a suitable person by the governor.
"SEC. 2. Said commission is hereby authorized and empowered *Page 269 to determine the necessity for the reparation of the bridge now connecting the two cities on North Main street, or for the building of a new bridge at said location, and upon the determination thereof to adopt plans for the reparation of the present bridge or the erection of a new bridge.
"SEC. 3. Said commission is further authorized and empowered, upon determination of the necessity and advisability of repairing the present bridge or the construction of a new bridge at said location, to adopt suitable plans for said reparation or said new construction, and plans for the approaches and abutments thereto, and for the raising or lowering of the grade of the highways leading thereto, if in the opinion of said commission such change is desirable, in which case said cities of Pawtucket and Central Falls shall alter the grades of their highways to correspond with the grade of such new bridge."
Section four of the act is similar in its provisions to section three of the Red Bridge act in the matter of damages caused to an abutting owner and the appeal from the award of appraisers appointed by the Superior Court and a trial by jury, but differs in this respect, that "the amount so awarded by said court shall be forthwith paid," but does not specify by whom it shall be paid. It is obviously impossible in the case of a claim for damages by an abutting owner caused by a change of grade, under section three, by the city of Central Falls, that the court can award that the damages should be paid by the city of Pawtucket, who is no party to such a suit, even if there were valid reason why the city of Pawtucket should in any event pay damage for that which it has not caused. But section five provides that "The expense of all said work of reparation and construction shall be paid by the city of Pawtucket in the first instance, and the city council of said city is hereby authorized and directed to make all such appropriations as may from time to time be necessary for that purpose;" and after providing for the issue of bonds of the city of Pawtucket for this purpose, and for a sinking fund for them, continues: "and all obligations which may be created under the authority of this act shall be exempted from the operation of section 2], Chapter 36 of the General Laws, and all acts in amendment thereof and *Page 270 in addition thereto," which is the only statute prohibiting the creation of municipal indebtedness in excess of three per cent. of the taxable property of the town or city.
It will be observed here that in this respect this act differs from the former act in that it makes no provision of any kind for the payment of damages to abutting owners; neither does it make any provision whatever for defraying the expenses of removing the old bridge, which was specifically provided for in the Red Bridge act and which is a wholly different matter from the expense of constructing a new bridge. It is obvious that a new bridge can not be constructed on the location of the old one without the demolition of the latter, but the cost of destruction and the cost of construction are as much separable as the acts themselves. In the Red Bridge act this was recognized, and the cost of removal of the old bridge was specifically directed to be included in the amount payable by the city of Providence. Here there is no statutory provision for defraying that cost at the expense of the city of Pawtucket. The commissioners seem to have recognized this omission and their consequent embarrassment, and without statutory authority therefor have required the cost of removal of the old bridge to be included in the proposals of contractors for the construction of the new one. The distinction would at once appear in case the old bridge had been washed away by a freshet. It is another of the deficiencies of this act that it makes no provision for the payment of the necessarily large expense in this respect which must be incurred before the work of construction is commenced.
It is contended by the respondents that the cost of construction is to be apportioned by the commission, under section six of the act, the provisions of which can only be adequately set forth by a citation of a part of it: "When such bridge shall be repaired, or the construction thereof completed, and the full cost of such reparation or construction shall have been ascertained, said city of Pawtucket shall file a full and detailed statement, setting forth the amount of expenditure, including the cost and expenses of said commission, made by it pursuant to this act, and the amount of interest due to the city of Pawtucket for money advanced under this act, in the office of *Page 271 the city clerk in both the city of Pawtucket and the city of Central Falls, and upon the filing thereof shall, after due notice to all parties interested therein and a hearing thereon at a time and place by said commission named in said notice, determine, decree, award, and name the total amount expended by said city of Pawtucket under this act, including the costs and expenses of this commission and the interest due the said city on amounts paid, which each of said cities of Pawtucket and Central Falls shall pay, and the proportion of the same which each of said cities shall pay." Then follows a provision for a report of the commissioners to the Superior Court, and provides for exceptions to the report and determination of the same by the court.
As to the first clause of this section, it is to be observed that the grammatical subject of the sentence concluding with the words "shall," etc., "determine, decree, award, and name the total amount expended by said city of Pawtucket under this act, including the costs and expenses of this commission and the interest due the said city on amounts paid, which each of said cities of Pawtucket and Central Falls shall pay, and the proportion of the same which each of said cities shall pay," is not "the commission," which, indeed, is directed to hold a hearing thereon, but is "said city of Pawtucket," — so that, while the commission is to hear the parties, the city of Pawtucket is to "determine, decree, and award."
But it is further provided that the city shall so "decree, determine, and award" "the total amount expended by said city of Pawtucket" under the act, and that "each of said cities of Pawtucket and Central Falls shall pay" such total amount. To whom Pawtucket is to pay again, after once having paid the contractor, is not apparent; and if each one of the cities is to pay "the total amount expended by said city of Pawtucket," it is obvious that such amount is to be twice paid, and that the language is wholly unintelligible. There seems to be no escape from this futile conclusion in view of the concluding sentence, which is perfectly clear: "and the proportion of the same which each of said cities shall pay."
Again, the Red Bridge act included a provision in section six *Page 272 thereof, supra, that "The expenses and fees of the commissioners of apportionment allowed by said court shall be paid in such manner and by such parties as the said court shall determine and award." This act contains no provision for the payment of any fees or compensation to the commissioners, but merely includes "the costs and expenses of this commission," which are obviously very different matters; and, equally obviously, do not include counsel fees, since the attorney-general is by law their legal adviser and has appeared in this case in their behalf, and also do not include any fees or compensation to the commissioners, for their services. Even if it were possible to so construe "costs and expenses" as to include compensation to the commissioners for their services, there is no provision in the act for the fixing of the amount of their charges; indeed, on this construction, the amount must be fixed by the commissioners themselves, and they are thus to be held to be authorized to charge what they please, and these amounts must first have been actually paid by the city of Pawtucket before the apportionment, since upon this construction they are specifically included in computing "the total amount expended by said city of Pawtucket," supra. Moreover, even upon exceptions to the report before the court, there seems to be no jurisdiction given to the court to revise or allow such charges for compensation, since the only judgment which the court is in terms empowered to enter and issue execution upon is a judgment in favor of the city of Pawtucket against the city of Central Falls, and is limited to a revision of the apportionment, and jurisdiction is not extended to a consideration of "the total amount expended by said city of Pawtucket" prior thereto. The mere statement of such a contention as this is sufficient.
The foregoing incoherent and unintelligible and inadequate provisions of this act and the omissions therein have thus been dwelt upon at length in order that we may thus be prepared for a consideration of the powers of the commission in respect of the allegation which is the gist of this petition, viz., that the award of a contract to construct the bridge by the commissioners *Page 273 to one Shaw, for the sum of $72,856.00, is illegal, null, and void, as being in excess of the authority of the commission.
What, then, are the powers of the commission, under the provisions of the act, in that regard? The answer is simply that there is no authority given the commission, in terms, to contract for or to construct a bridge at all. The respondents contend that the title of the act and the first section of it, supra, raise an implied authority to do so, since it was the evident purpose of the legislature that there should either be a reparation of the old bridge or the construction of a new one. To this contention it is replied that the commission is by sections one and two expressly "authorized and empowered" to do only two things in this respect, as set forth in sections one and two of the act, viz., to determine whether the old bridge shall be repaired or a new one constructed, under section one; or, under section two, in the event of a determination to construct a new bridge, to adopt plans therefor. All power to make a contract therefor, or to proceed with the construction, rests only upon implication; and such implication is not favored, in view of the express grant of authority to do certain enumerated and specific acts. It is further urged that all the provisions of the act are quite as consistent with a construction of it to the effect that the city of Pawtucket, which is to pay for it all in the first instance, has by implication the authority to contract for and to construct that for which it is thus to pay, in like manner as was the city of Providence in the case of the Red Bridge, supra, and that it is a needless expense to employ expert engineers and other assistants at the expense of the city of Pawtucket when that city already has an engineering department entirely competent to act in the premises, though in no way under the jurisdiction of this commission. It is clear that the act either does or does not authorize the commission to construct the bridge, and of necessity to make a contract therefor which shall be binding upon the city of Pawtucket for the cost of it. If this power be implied we are next to consider whether the commission can thus bind the city for an amount in excess of $72,000.00, not only without notice to the city, but, if at all, even against its protest. Upon examination of the act, it is *Page 274 hardly surprising, in view of the other omissions and defects in this act previously considered, to find that there is absolutely no limit fixed for the cost of the bridge in question. Indeed, the city council of Pawtucket is "directed" to pay the cost thereof, even though it should create an indebtedness in excess of the debt limit provided by law. The provisions of sections one and two "authorize and empower" the commissioners to adopt the plans for "a new bridge" simply, without specifying whether it is to be a bridge of wood, granite, steel, marble, or other material, or whether it is to be built upon piers or otherwise, or with or without a draw, or the load it shall be capable of carrying or the traffic it shall accommodate, and absolutely without limit as to cost. The petitioners contend in their brief that such a delegation of legislative power to the commissioners is unconstitutional, and therefore that, inasmuch as this court could not sustain such an act if the power were expressly given to the commission, it certainly can not so confer an unconstitutional power by implication and construction, and cases from other jurisdictions are presented in support of this contention.
In State v. Budge et al., 14 No. Dak. 532, 539 (1905), the legislature of that state created a capitol commission "whose duty it shall be to remodel and reconstruct upon its present site the capitol building of the state of North Dakota at Bismarck, and erect a suitable residence for the governor on the lots now owned by the state according to the provisions of this act." The law contains no directions as to how much shall be expended for each of said buildings. That is left entirely to the commissioners; and, continuing, on p. 540, the court says: "In this case the commission has unlimited discretion as to what the residence shall cost, and what the capitol shall cost, within the aggregate cost of both, which may, perhaps, be said to be limited to $600,000, because the aggregate sum of the certificates of indebtedness against the funds with which the buildings are to be paid for is limited to that sum. The commission has unlimited power under this law to fix the limits of the cost of each of said buildings. They finally determine what sums shall be used for each building. We think that such discretion should have been exercised by the legislature. It is not properly *Page 275 an administrative discretion. What the same buildings shall cost should have been limited by the act, as it is a substantive matter of legislative discretion that the legislature cannot delegate." And this in respect of State funds and not of municipal funds.
In Mathewson v. Hawkins, 19 R.I. 16, the question before the court was whether a contract for the construction of a bridge in the town of Burrillville, purporting to be executed on the part of the town by a "Surveyor of Bridges for the town of Burrillville," was valid in the absence of an appropriation therefor. While the decision of the question turned largely upon the powers of the officer in question, the court observed (p. 19) that "the taxpaying voters of the several towns have the right to determine how much shall be expended on the highways and bridges within the respective limits thereof and when and at what cost new bridges shall be constructed and erected," and on p. 20: "To hold that the contract in question is binding on the defendant town would be equivalent to holding that any surveyor of highways, or person occupying a similar position, has the power to construct and erect therein such bridges and at such cost as he alone shall see fit, and that the town must pay the bills. But we think it is clear that no such power exists."
And numerous other authorities are cited by the petitioners to the same effect. To this contention the respondents urge that this constitutional question is not properly before the court in this proceeding and upon a motion to dismiss.
Without deciding the constitutional question thus suggested, and which may come before this court in some other proceeding, as by petition for an injunction, it is sufficient for the present proceeding to hold that no construction of this act should be adopted which raises so grave a question of constitutional authority, and that it is our duty rather to hold that the legislature has failed to do that which it is claimed it sought to do, than it is to hold that the legislature has done that which it had no power to do. The alternative is that the statute by its silence in this respect has omitted to give to these commissioners, even by implication, the necessary authority to contract *Page 276 for and construct the bridge in question, and this conclusion is rendered even more tenable in view of that which the statute has failed to provide in other respects, as hereinbefore set forth.
The conclusion which follows is, therefore, that the act does not authorize the commissioners to contract for and construct this bridge, and that, inasmuch as these powers do not exist at all in the commission, it is obviously impossible to say that they are judicial in their nature and thus subject to review in this proceeding under the rule laid down in this State inGreenough v. School Committee, 27 R.I. 427, 428, viz.: "It is well settled that in this State the common-law limitations ofcertiorari prevail which confine it to the review of the judicial action of inferior courts or of public officers or bodies exercising under the law judicial or quasi-judicial functions. Dexter v. Town Council of Cumberland, 17 R.I. 222;Lonsdale Company v. License Commissioners, 18 R.I. 5; State v. Board of Aldermen of Newport, Ib. 381; Smith v. TownCouncil of Burrillville, 19 R.I. 61."
For such entire lack of authority in these commissioners to make the contract complained of, it follows that certiorari can not be maintained, and that the motion of the respondents to dismiss the petition must be granted.