It is the well-settled practice in this jurisdiction that this court will not pass upon the constitutionality of an act of the general assembly unless the matter is brought into question upon the record with clarity and particularity. Mailey v. DePasquale, 94 R.I. 31, 177 A.2d 376; Ravenelle v. City of Woonsocket, 73 R.I. 270, 54 A.2d 376; State v. Hartman, 65 R.I. 174, 14 A.2d 18. We also pointed out in the Ravenelle case that the statutory provisions regulating the certification of constitutional questions to this court have not altered the necessity of properly bringing such questions upon the record so that the trial justice may have the opportunity to decide or certify the issue.
The rule is well settled in this state that in criminal cases, absent some peculiar circumstance, we will not review the rulings of a trial justice where formal objection thereto or some proper plea has not been made by the defendant. State v. Hartman, 65 R.I. 174, 14 A.2d 18. However, where rigid adherence to the procedural requirement would deprive the defendant of its basic constitutional right, we will relax the strict procedural requirement and allow the defendant to raise the constitutional issue in an informal manner in this court. State v. Quattrocchi, 103 R.I. 115, 235 A.2d 99.
Even so, defendant further argues that ยง 11-41-2 is unconstitutional in that it creates a presumption of guilt contrary to the protection guaranteed by art. I, secs. 10 and 14 of the constitution of this state, and the due process guarantees of art. 14 of amendments to the constitution of the United States. This question of constitutionality was raised for the first time in this court, and the state contends that it is not properly before us. Citing State v. Quattrocchi, 103 R.I. 115, 235 A.2d 99; State v. Hartman, 65 R.I. 174, 14 A.2d 18; State v. Werner, 87 R.I. 314, 140 A.2d 502. In reply, defendant argues, in essence, that the instant case presents a situation where refusal by this court to consider the constitutionality of the subject statute would amount to adherence to state procedure in violation of a basic constitutional right, which adherence would be violative of the rule enunciated in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822.
Ravenelle v. City of Woonsocket, 73 R.I. 270. Ordinarily such a question is required to be raised upon the record through a formal demurrer, a plea in abatement, or a motion to quash the complaint. State v. Hartman, 65 R.I. 174. Conceding that there may be some slight language differences in the certification statutes with relation to raising the questions on the record, it does not follow that such questions may be raised off the record in an informal manner.
This final reason of appeal need not be considered, first, because it was not raised on the record in the superior court; and secondly, because it does not specifically identify the section or sections of article I of the state constitution, or the clause or clauses of article XIV of amendments to the United States constitution, which it is alleged said ยง 8 of the statute violates. Gradilone v. Superior Court, 79 R.I. 256; Haigh v. State Board of Hairdressing, 74 R.I. 106; State v. Hartman, 65 R.I. 174. There is no merit in the reasons of appeal which are predicated on the ground that the merits of the petition were not before the trial justice for decision at the hearing on the motion to dismiss.
There remains, however, the question of whether or not the act of the general assembly under which the council proceeded is constitutionally valid. This question, in our judgment, is not properly before us at this time and we express no opinion regarding it. Whatever may be the practice elsewhere, it is well settled in this state that this court will not pass upon the constitutionality of an act of the general assembly unless the matter is brought in question upon the record of the cause with clarity and particularity. Blais v. Franklin, 30 R.I. 413; Greenough v. Peoples Savings Bank, 38 R.I. 100; State v. Hartman, 65 R.I. 174. The recent amendment to the statute regulating the certification of constitutional questions to this court has not altered the necessity of properly bringing such question upon the record. P.L. 1940, chap. 941.