Merciol v. New England Telephone and Telegraph Company

290 A.2d 907, 110 R.I. 149, 1972 R.I. LEXIS 892
CourtSupreme Court of Rhode Island
DecidedMay 23, 1972
Docket1476-M. P
StatusPublished
Cited by16 cases

This text of 290 A.2d 907 (Merciol v. New England Telephone and Telegraph Company) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Merciol v. New England Telephone and Telegraph Company, 290 A.2d 907, 110 R.I. 149, 1972 R.I. LEXIS 892 (R.I. 1972).

Opinion

*150 Paolino, J.

The New England Telephone and Telegraph Company filed a petition with the Zoning Board of Review of the City of Newport for a variance to allow the construction of a two-story addition to the existing telephone exchange building for the housing of additional telephone equipment. The premises are located in an R-10 residential district. The petition requested permission to vary the application of chapter 78-7 of the zoning ordinance as to permitted uses in the R-10 district and chapter 78-9 as to the rear yard.

The board of review heard the petition on January 25, 1971, and, after hearing statements for and against the petition, rendered a written decision granting the petition on the grounds that it was not feasible to relocate the building from its present site and that the proposed addition was “* * * in the public interest to meet the needs of the growing telephone subscribers in this area.”

The petitioners, as objectors, appealed the board’s decision to the Superior Court pursuant to the provisions of G. L. 1956 (1970 Reenactment) §45-24-20, as amended by P. L. 1969, ch. 239, sec. 48. Their complaint, as amended, prayed for a restraining order and the overruling of the board’s decision. The board and the telephone company, respondents in this proceeding, filed motions to dismiss. Only the telephone company’s motion was argued before the Superior Court and after a hearing thereon the trial justice filed a written decision affirming the decision of the board of review. A judgment was subsequently entered dismissing petitioners’ appeal.

Thereafter petitioners filed a motion here for leave to *151 file a petition for a writ of certiorari to review and quash, the action of the board and the decision of the Superior Court and the judgment entered thereon. After considering the memoranda of law filed by the opposing parties we granted the motion in order to test the effect of G. L. 1956 (1969 Reenactment) §39-1-30, as enacted by P. L. 1969, ch. 240, sec. I, 1 on §45-24-20, as amended by P. L. 1969, ch. 239, sec. 48, 2 in cases involving public utilities. We ordered the writ to issue forthwith and pursuant thereto the pertinent records have been certified to this court.

The petitioners challenge the validity of the decision of the board of review and that of the Superior Court on several grounds. However we do not reach those questions. The threshold question here raises the issue whether the Superior Court had jurisdiction to hear petitioners’ appeal from the decision of the board of review. We address ourselves to that question.

Section 45-24-20, as amended by P. L. 1969, ch. 239, sec. 48, is the general statute governing appeals in zoning cases. It provides in pertinent part as follows:

“Appeals to superior court. — Any person or persons jointly or severally aggrieved by a decision of the zoning board may appeal to the superior court for the county in which the municipality is situated by filing a complaint setting forth the reasons of appeal within twenty (20) days after such decision has been filed in the office of the zoning board. * * * * * *
“The provisions of this section shall apply to appeals from all zoning boards of review of any city or town, whether or not such city or town has adopted the provisions of this chapter.”

Prior to the enactment of P. L. 1969, ch. 239, sec. 48, the method of appeal from decisions of zoning boards was by way of certiorari under §45-24-20, as it then read.

*152 At the same time that the General Assembly amended §45-24-20 in 1969, they also enacted P. L. 1969, ch. 240, sec. 1, now G. L. 1956 (1969 Reenactment) §39-1-30. They made no reference to §39-1-30 in §45-24-20, as amended. Section 39-1-30 deals with appeals in zoning cases involving public utilities. It provides for appeals to the Public Utilities Commission. The pertinent portion of §39-1-30 contains the following language which appears in the first sentence of the statute:

“Every ruling, decision and order of a zoning board of review and of a building, gas, water, health or electrical inspector of any municipality affecting the placing, erection and maintenance of any plant, building, wires, solid waste disposal facility or area, conductors, fixtures, structures, equipment or apparatus of any company under the supervision of the commission shall be subject to the right of appeal by any aggrieved party to the commission within ten (10) days from the giving of notice of such ruling, decision or order.”

The New England Telephone and Telegraph Company is a public utility. The decision of the board of review is a “ruling, decision and order of a zoning board of review * * * affecting the placing * * * and maintenance of * * * equipment” of the telephone company, a company “under the supervision” of the Public Utilities Commission. The petitioners are persons aggrieved by the decision of the zoning board.

The narrow question before us is whether petitioners’ appeal should have been under §45-24-20, as amended, or under §39-1-30. The petitioners argue in substance that the language of the statutes is inconsistent and at best offers an aggrieved party alternate methods of appeal. The telephone company, on the other hand, argues that the language of §39-1-30 is clear and unambiguous and evidences a legislative intent to treat appeals in zoning cases involving public utilities differently from appeals in cases *153 not involving public utilities. We agree with the telephone company’s position.

It is well settled that where there is apparent inconsistency between statutory provisions that are in pari materia or which affect related subjects, the various provisions must be given meaning and effect and all be made operative if reasonably possible, so that effect may be given to the apparent object and purpose of the Legislature. Davis v. Cranston Print Works Co., 86 R. I. 196, 133 A.2d 784 (1957). See also Mustapha v. Patton-MacGuyer Co., 100 R. I. 493, 217 A.2d 240 (1966); Davis v. Cousineau, 97 R. I. 85, 196 A.2d 153 (1963). The specific language of §39-1-30 modifies the more general language of §45-24-20, as amended. We are satisfied that the Legislature by the enactment of §39-1-30 intended to create an exception to the general appellate jurisdiction given to the Superior Court by §45-24-20, as amended. Construing §45-24-20, as amended, as giving immediate review to the Superior Court in cases involving public utilities would render §39-1-30 a nullity and would run contra the well-recognized presumption that every word, sentence or provision of a statute was intended for some useful purpose and has some force and effect. See Capaldi v. Liberty Tool & Cage Works, Inc., 99 R. I.

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Bluebook (online)
290 A.2d 907, 110 R.I. 149, 1972 R.I. LEXIS 892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merciol-v-new-england-telephone-and-telegraph-company-ri-1972.