In re Census Superintendent

• Decision Date: 24 April 1885
• Citation: 15 R.I. 614,15 A. 205
• Parties: IN RE CENSUS SUPERINTENDENT.
• Court: Rhode Island Supreme Court

15 A. 205

15 R.I. 614

IN RE CENSUS SUPERINTENDENT.

Supreme Court of Rhode Island

April 24, 1885

To His Excellency, Augustus O. Bourn, Governor of the State of Rhode Island and Providence Plantations:

We have received from your excellency a communication requesting our opinion upon a question stated as follows to-wit: "JANUARY 5, 1885. I appointed Amos Perry, of Providence, to be superintendent of the census, no appointment having been previously made. Was such appointment lawful?" The statute (Pub. St. R.I. c. 63 § 1) provides that "a census of the population manufactures, agriculture, fisheries, and business of the several towns shall be taken as they exist on the 1st day of June, 1885, and every tenth year thereafter." It will be noted that the language is imperative,--"the census shall be taken." The third section provides that, "at least six months previous to the date for taking the census in each census year, the governor shall appoint a superintendent of the census, who, together with the governor and the secretary of state, shall constitute the census board, which shall have the charge of taking the census." The language here is likewise imperative. Other sections, particularly section 4, prescribe duties to be performed by the superintendent, which are indispensable to the proper taking of the census. The power to make the appointment is unquestionably given as incident to the duty which is imperative. The only question, therefore, is whether the governor, having failed to make the appointment within the prescribed time, could lawfully make it afterwards. We think he could, for without the appointment the taking of the census, which is absolutely prescribed would fail. We think the provision in regard to time must be construed as merely directory, the duty to appoint being paramount and essential.

The case of People v. Allen, 6 Wend. 486, seems to be exactly in point. There a statute of the state of New York provided that "the commanding officer of each brigade of infantry shall, on or before the 1st day of June in every year, appoint a brigade court-martial." The officer did not appoint until July. The question for the court was, could the power of appointment be exercised after the 1st day of June? The court decided that it could. Judge MARCY delivering the opinion of the court, said: "The general rule is that where a statute specifies the time within which a public officer is to perform...