dissenting.
I respectfully dissent. In my opinion, the decision of the majority represents a judicial repeal of a portion of the Rhode Island Constitution without the approval of the voters.
Article 13, section 4, of the Rhode Island Constitution limits the power of the Genera al Assembly over cities and towns that have enacted home rule charters. Although the General Assembly may enact laws “which shall apply alike to all cities and towns,” an “act in relation to the property, affairs and government of a particular city or town” is effective only “upon approval by a majority of the qualified electors of the said city or town voting at a general or special election!.]” R.I. Const, art. 13, sec. 4. Significantly, “in the case of acts involving the imposition of a tax or the expenditure of money by a town ” as opposed to a city, the act “shall provide for the submission thereof to those electors in said town qualified to vote upon a proposition to impose a tax or for the expenditure of money.” Id. (Emphasis added.) It is this later provision that has been put to rest by the majority today.
There is no doubt that the Constitution of Rhode Island has exclusively reserved to the General Assembly the power to levy and collect taxes and to borrow money, and, pursuant to article 13, section 5, of the Constitution specifically denies to the cities and towns the power to “levy, assess and collect taxes or to borrow money, except as authorized by the general assembly.” Thus, it cannot be argued that the state’s municipalities must obtain General Assembly enabling authority in matters pertaining to taxation and borrowing. In my opinion, in cases of towns, but not cities, these enabling acts, in accordance with article 13, section 4, must “provide for the submission thereof to those electors in said town qualified to vote upon a proposition to impose a tax or for the expenditure of money.” We have said so in 1952 and again in 1996. In the case of Opinion to House of Representatives, 79 R.I. 277, 280, 87 A.2d 693, 696 (1952), we advised the honorable members of the House of Representatives concerning the relationship to the General Assembly of, a city or town after the adoption of a home rule charter. We specifically held that pursuant to article 28, section 4, now article 13, section 4, an act of the General Assembly was subject to “the further provision that if it involves the imposition of a tax or the expenditure of money by a town, as distinguished from a city,” the act must be submitted to the qualified electors. Opinion to House of Representatives, 79 R.I. at 280, 87 A.2d at 696.
In Warwick Mall Trust v. State, 684 A.2d 252 (R.I.1996), we held that an act of the General Assembly that authorized the Rhode Island Economic Development Corporation and the City of Providence to enter into a long-term tax exemption agreement with the developer of the Providence Place Mall did not require the approval of the voters pursuant to article 13, section 5, of the constitution and, citing to Opinion to House of Representatives, supra, we again specifically held that the *419challenged legislation did not involve " ‘the imposition of a tax or the expenditure of money by a town, as distinguished from a city * * *.’ ” Warwick Mall Trust, 684 A.2d at 255 n. 9. (Emphasis added.) Thus, we held that the act “does not come within the tax-imposition or money-expenditure-by-a-town provision of article 13, section 4,” rather, we concluded that because the enabling legislation related to a city “ ‘as distinguished from’ ” a town, article 13 did not apply. Warwick Mall Trust, 684 A.2d at 255 n. 9. In the case now before the Court, the act of the General Assembly with which we are concerned relates to a town, and our departure from these holdings has laid this constitutional provision to rest.
I further dissent because, in my opinion, the majority has gone beyond the record in this case and canvassed the state’s towns to determine how each municipality enacts its annual budget. In towns that no longer have a financial town meeting, the majority has concluded that article 13, section 4, no longer is applicable because the provision is “vestigial” and may therefore be disregarded by this Court. Although the majority may conclude that a constitutional provision is but an anachronism, it remains part of this state’s constitution and it should be upheld. Further, we are faced with an amendment to a previous enabling act in which the voters of the Town of Middletown approved the borrowing of money and, significant!y, the manner in which those funds would be repaid. In my opinion, the voters also are entitled to determine whether the repayment provisions should be amended.
The majority has concluded that the Town of Middletown, in accordance with this Court’s opinion in Newport Court Club Associates v. Town Council of Middletown, 716 A.2d 787 (R.I.1998) (Newport Court Club I), did “exactly” what the Court directed the town to do: “it obtained the General Assembly’s authorization to levy charges for debt service and capital improvements.” I agree that Middletown, after our decision in NewpoH Court Club I, sought an amendment to its sewer enabling act and based upon that very holding, the town could not change the manner in which it levied taxes to retire its debt without authorization from the Legislature. However, I do not agree that we implied or even hinted that Middletown could accomplish an amendment to its enabling authority without voter approval. Indeed, in NewpoH CouH Club I, we noted that “subsequent acts of the General Assembly that have authorized the issuance of additional bonds for sewer expansions * * * have specifically referred to the sewer enabling authority and have required the approval of [the] electors ” of the town. Id. at 791. (Emphasis added.) Thus, the conclusion of the majority that in NewpoH CouH Club I, this Court suggested or implied that voter approval no longer was necessary, because otherwise we would “eviscerate and nullify this Court’s holding in NewpoH CouH Club is simply untenable and represents a marked departure from its very holding.
Further, it is not the town’s conduct that is in violation of the constitution. It is the enabling act itself that is defective, and not the behavior of the town. Article 13, section 4, mandates that the act providing for the imposition of a tax or the expenditure of money by a town “shall provide for the submission thereof to those electors in said toum qualified to vote * * (Emphasis added.) Thus, the real problem, in my opinion, lies with the act of the General Assembly in failing to provide for voter approval in accordance with article 13, section 4, of the Rhode Island Constitution.
Finally, just as I disagree that this Court may not go beyond the record and *420canvass the state’s municipalities to determine whether a constitutional provision is “vestigial,” nor do I believe that the General Assembly should be burdened with the responsibility of researching how a town adopts its budget before it enacts legislation to enable a municipality to borrow money or levy taxes. Consequently, I dissent.