said in his concurring opinion in Providence Steam-Engine Co. v. Providence & Stonington Steamboat Co., 12 R. I. 348, at 357: “The true doctrine seems to be, as a result of the decisions, that the State has the governmental control of the shores and tide-waters for the benefit of the public, in order to protect the public rights of passage or other rights on the shore, and to protect the navigation.” This was only a dictum, but there was nothing inconsistent with it in the opinion of the court. It was held in that case that a riparian owner has certain rights in the shore in front of his property, subject to control by the state, including a right of wharfing out.
In Allen v. Allen, 19 R. I. 114, at 115, this court said, by way of dictum: “The State holds the legal fee of all lands below high water mark as at common, law, as has been uniformly and repeatedly decided by this court.”' On page 116, the court continued thus: “This right of the State is held, however, by virtue' of its sovereignty, and in trust for all the inhabitants, not as a private proprietor. The public rights secured by this trust are the rights of passage, of navigation and of fishery, and these rights extend, even in Massachusetts, to all land below high water mark unless it has been so used, built upon or occupied, as to prevent the passage of boats, and the natural ebb and flow of the tide. . . . Until actual filling out, the public rights exist as before.”
In Rhode Island Motor Co. v. City of Providence, 55 A. 696 (1903), very nearly all of the language above quoted from Allen v. Allen, supra, is set forth, by way of dicta, with evident approval.
Counsel for the respondents in the instant cause assert, in effect, that when the expressions “public for passage” and “rights of passage” are used in the above-cited cases, they refer to rights of owners of the upland just above the line of mean high tide to cross the shore to the tidewater, rather than to the right of the people to go along the shore. But we do not find that assertion to be correct.
*227It is true that the statements above quoted, from opinions of this court, as to a public right of passage along the shore between high-water mark and low-water mark are only dicta. But in the absence of any decision by this court determining just what rights, if any, of passage along the shore are protected by the above-quoted provision of the Rhode Island constitution, we are of the opinion that the above dicta are entitled to much consideration, especially as they seem to have been acquiesced in ever since they were stated.
After considering the above authorities in this state and all other authorities here and elsewhere which have been called to our attention or which we have found and which have any bearing on the constitutional question now before us, we are of the opinion that at the time of the adoption of our constitution there was, among the “privileges of the shore”, to which the people of this state had been theretofore entitled under the “usages of this State”, a public right of passage along the shore, at least for certain proper purposes and subject, very possibly, to reasonable regulation by acts of the general assembly in the interests of the people of the state. Whether this right is thus subject to such regulation we need not and do not decide.
If the amending act now in question be held constitutional, the resulting amended act would authorize the commission to construct any kind of a fence which it chose to construct, of any. height, which might be without any gates and by the use of which the commission could prevent any person or persons from passing along any part of the shore between Easton’s Beach and the line of mean low tide, within the lateral limits specified in the act, for any purpose whatever, be it for fishing, bathing, boating, getting seaweed or sand, or for exercise or any other purpose.
The commission, as above set forth, has stated publicly what sort of fences it intends to have constructed and for what purpose it intends to use them, and that it intends to make arrangements so that persons may be allowed to pass *228through such fences for the exercise of rights to fish or to remove seaweed from the shore. But its intentions in these matters have, in our judgment, no bearing on the question of the constitutionality of the amending act, which does not purport to limit it in any of these respects.
It is also true, as above stated, that in that act, immediately after the provision purporting to give the commission the right and power to erect fences on any part of this shore, as bounded in the act, there is a provision purporting to endow the commission with the power to make such reasonable rules and regulations as it may deem necessary and proper for the care, management and operation of any fences which may be thereon from time to time. But we cannot see how this provision purporting to grant to the commission a certain discretionary power as to fences, which power it may or may not exercise, can prevent the act from being-held void for unconstitutionality.
The question to be decided by us in this matter is that of the constitutionality of the act now before us, which, if valid, would, by adding by amendment certain language to P. L. 1939, chap. 759, give the respondent commission, without any restriction whatever, the power to erect fences of any sort on any part of the shore, i. e., the land between high and low water marks and lying between the cliffs, so-called, on the west, and the extension southerly of the boundary line between the city of Newport and the town of Middletown, on the east, and thereby to exclude the public from that part of the shore, or to admit them only on such conditions as the commission may wish to impose; and to control, operate and manage that part of the shore as if it belonged to the city of Newport as a part of Easton’s beach; and by so doing to make a profit solely for that city.
After taking all these matters into consideration, we are forced to the conclusion that the general assembly is without power under the constitution to vest in the commission such broad, unrestricted and unregulated authority, as the act in question purports to vest therein.
*229Louis J. Barry, Jr., for complainant. Jeremiah A. Sullivan, City Solicitor, for respondents.The decision of this court is that public laws 1940, chap. 848, is unconstitutional and void because it is in violation of article I, section 17 of the constitution of this state.
The papers in the cause with the decision of this court certified thereon are ordered sent back to the superior court for further proceedings.