At the January Session of the General Assembly, 1920, an act was passed entitled, "An Act to Prohibit and Regulate the Pollution of the Waters of the State," the same being Chapter 1914 of the Public Laws.
By this act the appointment of a "Board of Purification of Waters," consisting of three members, was authorized and its duties and powers prescribed. Such board having been appointed and qualified to act made an order establishing certain rules and regulations to prevent the discharge or escape of any petroleum, gasoline, kerosene, tar, oil, or any product or mixture thereof into the public waters as it was empowered to do under section 8 of said act.
The petitioner does not claim that there was any irregularity in the proceedings of the board leading up to its action establishing rules and regulations. The claim of the petitioner is that it is aggrieved by said order of the Board of Purification of Waters and is entitled to an appeal to this court. The petitioner's appeal is now before us and sets forth some twenty grounds upon which it contends that the aforesaid order is unlawful and unreasonable.
Without setting forth in detail the several rules and regulations promulgated by the board and the numerous reasons of appeal of the petitioner, we think that a particular reference to one of the rules and the reasons of appeal relating thereto will sufficiently illustrate and make clear the petitioner's attitude and our conclusions.
The second rule and regulation is as follows: "2. No person shall discharge or cause, suffer or procure to be discharged or cause or suffer to escape into any of the public waters of the state any petroleum, gasoline, kerosene, tar, oil, or any product or mixture thereof."
In its reason of appeal the petitioner sets forth that such rule and regulation is unlawful because the escape of such products is prohibited irrespective of whether or not such escape causes pollution of the waters; that on the same ground it is unreasonable, and that it is also unlawful and unreasonable on the further ground that the escape of the above mentioned products is prohibited irrespective of the circumstances, reason or cause for the same.
The petitioner in its argument upon its appeal informs us that it has not polluted any of the public waters and does
not propose or intend to do so, but that it is aggrieved by the order of the board under which the rules and regulations were adopted and published and consequently is entitled to bring the matter to this court on appeal and have such order reversed.
The petitioner does not claim that it has been made the subject of any proceeding under this act. It is evident that the petitioner apprehends that it might in the future, for some act or omission, be complained of under some provision of Chapter 1914 and that such provision as applied to the circumstances of a case which might arise would be unlawful or unreasonable. Under these conditions is the petitioner aggrieved by the publication of rules and regulations which apply generally to all the people of the State and entitled to maintain its appeal?
The act says in Section 12 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."
We think that this language must be construed as referring to some order directed to the party claiming the appeal and not to an order, like the one here appealed from, which is manifestly intended to visualize various situations where a party might be held accountable under the act.
The right of appeal is statutory and is given to those who are aggrieved by the finding of an inferior tribunal which has previously dealt with the cause or matter in controversy. In considering who should properly come within the definition of the word "aggrieved" this court said in Tillinghast v. BrownUniversity, 24 R.I. 179, "that a party is aggrieved by the judgment or decree where it operates on his rights of property or bears directly upon his interest. . . The word `aggrieved' refers to a substantial grievance, a denial of some personal or property right or the imposition upon a party of a burden or obligation."
This language of the court has been reiterated and approved in Smith v. Whaley, 27 R.I. 185, 188 and McKenna v.McKenna, 29 R.I. 224, 227.
We do not think that any property right of the petitioner has been invaded or any burden or obligation imposed upon it by the general rules and regulations which the board has ordered published. These rules and regulations seem to us to be admonitory in character and to relate to ways and methods which the petitioner declares it has never fallen into or adopted and which it does not propose to employ in the future.
It does not seem to us that a party can be said to be aggrieved by the establishment of general rules and regulations in the absence of any attempt to enforce them. Section 10 of the act distinctly sets forth that, "No person shall be convicted or found liable in any criminal prosecution at common law or in any other proceeding brought by or in behalf of the state, the board or the public, to enjoin, suppress, prohibit or punish the pollution of the waters of the state unless he shall have violated an order of the board issued under the authority conferred upon it by Section 5 or 8."
Section 5 provides that if the board, after investigation, shall find that any person is polluting the waters of the state, it shall make its findings in writing to that effect and may enter an order directing such person to adopt or use or to operate properly, as the case may be, some practicable and reasonably available system or means to prevent such pollution and it also further provides that the board shall forthwith cause an attested copy of each order entered by it to be served upon the person or persons affected thereby.
Section 8 empowers the board to inspect and make orders regulating and directing all methods, means and devices employed on any steamer or other vessel receiving, carrying or discharging any petroleum or its products and that any violation of any such order shall be punished as provided in Section 7 of the act.
Section 7 after prescribing the penalty which may be incurred by any person guilty of polluting the waters of the state further provides that, "In case the board finds that
any person has been guilty of pollution in violation of any order of the board, the board shall enter an order stating such finding and specifying the order deemed by it to have been violated," and that "no prosecution shall be instituted under this act or under the common law without such order having first been entered. No such order shall be entered . . . until the board shall have given the person accused of such violation at least thirty days' notice in writing to show cause why such order should not be entered and have granted him a hearing."
It is quite apparent from these provisions of the act that any proceeding instituted thereunder must be directed to a definite person who by previous investigation shall have been found guilty. Sections 5 and 7 of the act both contemplate a preliminary investigation and finding to be followed by the entry of an order based thereon and such order can in no way be confused with, neutralized or modified by a prior order prescribing general rules and regulations.
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At the January Session of the General Assembly, 1920, an act was passed entitled, "An Act to Prohibit and Regulate the Pollution of the Waters of the State," the same being Chapter 1914 of the Public Laws.
By this act the appointment of a "Board of Purification of Waters," consisting of three members, was authorized and its duties and powers prescribed. Such board having been appointed and qualified to act made an order establishing certain rules and regulations to prevent the discharge or escape of any petroleum, gasoline, kerosene, tar, oil, or any product or mixture thereof into the public waters as it was empowered to do under section 8 of said act.
The petitioner does not claim that there was any irregularity in the proceedings of the board leading up to its action establishing rules and regulations. The claim of the petitioner is that it is aggrieved by said order of the Board of Purification of Waters and is entitled to an appeal to this court. The petitioner's appeal is now before us and sets forth some twenty grounds upon which it contends that the aforesaid order is unlawful and unreasonable.
Without setting forth in detail the several rules and regulations promulgated by the board and the numerous reasons of appeal of the petitioner, we think that a particular reference to one of the rules and the reasons of appeal relating thereto will sufficiently illustrate and make clear the petitioner's attitude and our conclusions.
The second rule and regulation is as follows: "2. No person shall discharge or cause, suffer or procure to be discharged or cause or suffer to escape into any of the public waters of the state any petroleum, gasoline, kerosene, tar, oil, or any product or mixture thereof."
In its reason of appeal the petitioner sets forth that such rule and regulation is unlawful because the escape of such products is prohibited irrespective of whether or not such escape causes pollution of the waters; that on the same ground it is unreasonable, and that it is also unlawful and unreasonable on the further ground that the escape of the above mentioned products is prohibited irrespective of the circumstances, reason or cause for the same.
The petitioner in its argument upon its appeal informs us that it has not polluted any of the public waters and does
not propose or intend to do so, but that it is aggrieved by the order of the board under which the rules and regulations were adopted and published and consequently is entitled to bring the matter to this court on appeal and have such order reversed.
The petitioner does not claim that it has been made the subject of any proceeding under this act. It is evident that the petitioner apprehends that it might in the future, for some act or omission, be complained of under some provision of Chapter 1914 and that such provision as applied to the circumstances of a case which might arise would be unlawful or unreasonable. Under these conditions is the petitioner aggrieved by the publication of rules and regulations which apply generally to all the people of the State and entitled to maintain its appeal?
The act says in Section 12 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."
We think that this language must be construed as referring to some order directed to the party claiming the appeal and not to an order, like the one here appealed from, which is manifestly intended to visualize various situations where a party might be held accountable under the act.
The right of appeal is statutory and is given to those who are aggrieved by the finding of an inferior tribunal which has previously dealt with the cause or matter in controversy. In considering who should properly come within the definition of the word "aggrieved" this court said in Tillinghast v. BrownUniversity, 24 R.I. 179, "that a party is aggrieved by the judgment or decree where it operates on his rights of property or bears directly upon his interest. . . The word `aggrieved' refers to a substantial grievance, a denial of some personal or property right or the imposition upon a party of a burden or obligation."
This language of the court has been reiterated and approved in Smith v. Whaley, 27 R.I. 185, 188 and McKenna v.McKenna, 29 R.I. 224, 227.
We do not think that any property right of the petitioner has been invaded or any burden or obligation imposed upon it by the general rules and regulations which the board has ordered published. These rules and regulations seem to us to be admonitory in character and to relate to ways and methods which the petitioner declares it has never fallen into or adopted and which it does not propose to employ in the future.
It does not seem to us that a party can be said to be aggrieved by the establishment of general rules and regulations in the absence of any attempt to enforce them. Section 10 of the act distinctly sets forth that, "No person shall be convicted or found liable in any criminal prosecution at common law or in any other proceeding brought by or in behalf of the state, the board or the public, to enjoin, suppress, prohibit or punish the pollution of the waters of the state unless he shall have violated an order of the board issued under the authority conferred upon it by Section 5 or 8."
Section 5 provides that if the board, after investigation, shall find that any person is polluting the waters of the state, it shall make its findings in writing to that effect and may enter an order directing such person to adopt or use or to operate properly, as the case may be, some practicable and reasonably available system or means to prevent such pollution and it also further provides that the board shall forthwith cause an attested copy of each order entered by it to be served upon the person or persons affected thereby.
Section 8 empowers the board to inspect and make orders regulating and directing all methods, means and devices employed on any steamer or other vessel receiving, carrying or discharging any petroleum or its products and that any violation of any such order shall be punished as provided in Section 7 of the act.
Section 7 after prescribing the penalty which may be incurred by any person guilty of polluting the waters of the state further provides that, "In case the board finds that
any person has been guilty of pollution in violation of any order of the board, the board shall enter an order stating such finding and specifying the order deemed by it to have been violated," and that "no prosecution shall be instituted under this act or under the common law without such order having first been entered. No such order shall be entered . . . until the board shall have given the person accused of such violation at least thirty days' notice in writing to show cause why such order should not be entered and have granted him a hearing."
It is quite apparent from these provisions of the act that any proceeding instituted thereunder must be directed to a definite person who by previous investigation shall have been found guilty. Sections 5 and 7 of the act both contemplate a preliminary investigation and finding to be followed by the entry of an order based thereon and such order can in no way be confused with, neutralized or modified by a prior order prescribing general rules and regulations.
It is further contended that the board being authorized to make rules and regulations its action in that regard would bequasi legislative.
The case of Nelson v. State Board of Health,186 Mass. 330, is substantially like the case at bar. In that case the petitioner appealed from an order of the board establishing rules and regulations, "for the purpose of preventing the pollution and securing the sanitary protection of the waters" and the court held that the provision of the act giving any person aggrieved the right of appeal does not apply to rules, regulations and orders which are made by the board and which are quasi
legislative in character.
We think that the powers given to the board under Chapter 1914 of the Public Laws to make rules and regulations come within the classification of quasi legislative powers and for that reason also the appeal of the petitioner must be dismissed.
The respondent's motion to dismiss the appeal is granted.