In re Opinion to the Governor

• Decision Date: 01 April 1935
• Citation: 178 A. 433
• Parties: In re OPINION TO THE GOVERNOR.
• Court: Rhode Island Supreme Court

178 A. 433

In re OPINION TO THE GOVERNOR.

Supreme Court of Rhode Island.

April 1, 1935.

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Request of the Governor for an opinion as to constitutional convention.

Answer to question propounded to the Justices of the Supreme Court by the Governor.

Oral arguments were made by the following members of the Rhode Island Bar: For a constitutional convention:

John P. Hartigan, Atty. Gen., and John J. Cooney, Asst. Atty. Gen., at the instance of His Excellency Theodore Francis Green, Governor.

Patrick H. Quinn and William A. Graham, both of Providence, at the instance of the Rhode Island Bar Association, with Michael De Ciantis, of Providence, on the brief.

Thomas J. Flynn, of Providence, with James W. Leighton, of Providence, on the brief, for Robert E. Quinn, Lieutenant Governor.

Thomas F. Cooney, of Providence, filed a brief.

James T. Greene, of Woonsocket, amicus curiæ.

George Ajootian, of Providence, for negative answer to (C).

Edgar V. F. McCrillis, of Providence. Against a constitutional convention:

Elmer S. Chace and Frederick W. Tillinghast, both of Providence, at the instance of the Rhode Island Bar Association.

Russell W. Richmond, of Providence.

Herbert M. Sherwood, of Providence, in behalf of Richard S. Aldrich, Henry M. Boss, Jr., Westcote H. Chesebrough, Sidney Clifford, James C. Collins, and Harry Parsons Cross, all of Providence, Walter Curry, of Newport, Edward L. Godfrey and William B. Greenough, both of Providence, William R. Harvey, of Newport, James A. Higgins, Louis V. Jackvony, Francis B. Keeney, Edmund J. Kelly, Clifford A. Kingsley, James B. Littlefield, Edward F. Lovejoy, Richard E. Lyman, Archibald C. Matteson, Benjamin M. McLyman, and E. Butler Moulton, all of Providence, William A. Peckham, of Newport, Fred B. Perkins, of Providence, William P. Sheffield, of Newport, Charles P. Sisson, Harold E. Staples, Rush Sturges, Walter I. Sundlun, Harold B. Tanner, Frank W. Tillinghast, and Everett L. Walling, all of Providence, and Clarence N. Woolley, of Pawtucket, amici curiæ.

Zechariah Chafee, Sr., of Providence, filed a brief.

To His Excellency, Theodore Francis Green, Governor of the State of Rhode Island and Providence Plantations.

We have received from Your Excellency a request for our written opinion upon a question of law in accordance with the following section of article 12 of Amendments to the Constitution of this state: "Sec. 2. The judges of the supreme court shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly." The question is as follows:

"Would it be a valid exercise of the legislative power if the General Assembly should provide by law (a) for a convention to be called to revise or amend the constitution of the state; (b) that the governor shall call for the election, at a date to be fixed by him, of delegates to such convention in such number and manner as the General Assembly shall determine; (c) that the general officers of the state shall by virtue of their offices be members of such convention; (d) for the organization and conduct of such convention; (e) for the submission to the people, for their ratification and adoption, of any constitution or amendments proposed by such convention; and (f) for declaring the result and effect of the vote of a majority of the electors voting upon the question of such ratification and adoption ?"

If this language were strictly and literally construed, it would require us to give a negative answer to the question, unless we should be of the opinion that it would be a valid exercise of its legislative power for the General Assembly to pass an act or resolution which would contain provisions for all the different matters which are set forth in subparagraphs (a) to (f), inclusive, of the question. For obvious reasons we do not believe that the question was intended to be so construed.

Therefore, to carry out what we believe to be the real intent and purpose of the question, we construe it as comprising six questions, the first of which is whether it would be a valid exercise of the power of the General Assembly, if it should provide, by an act or resolution, for the calling of a convention to revise or amend the Constitution of the state. All of the other questions are only subsidiary and have no meaning, unless this first and primary question is answered in the affirmative. Assuming that it is so answered, each of the other questions is whether such an act or resolution of the General Assembly could legally contain such a provision as is set forth in (b), (c), (d), (e), or (f), as the case may be.

These questions raise an issue that has long troubled the people of our state. That issue simply put is whether article 13 of our Constitution prescribes an exclusive method . of altering the Constitution either in part or as a whole. If it does, then a legal constitutional convention is an impossibility in Rhode Island. The judges of this court, in an opinion submitted to the Honorable Senate forty-two years ago, In re The Constitutional Convention, 14 R. I. 649 (March 30, 1883), said that it did. Since that time there has been no further judicial expression on the point in this state. Almost from the day it was given, however, that opinion has been subjected to vigorous attack by authorities on the law of constitutional conventions both within and without the state. No court anywhere in the country when called upon to consider a similar constitutional question has cited it for authority.

In view of the foregoing, we have deemed it of the utmost importance in our consideration of the questions before us to exhaust every avenue of information that would assist us in giving our opinion. Accordingly, we have largely laid aside other duties pressing upon us and have devoted ourselves to a thorough, painstaking examination of the authorities and a careful review of the legislative precedents and practice of Rhode Island in the field of Constitution making. In this we have been ably assisted by outstanding leaders of our bar, including the Attorney General of the state, who at our invitation appeared before us and argued these' intricate constitutional questions. In addition, we have had also the benefit of their well-prepared and exhaustive briefs in the matter. We have carefully considered all the arguments presented, and have examined and carefully considered all of the authorities to which our attention has been called, and many others.

The first and primary question to be considered, then, is whether it would be a valid exercise of the power of the General Assembly, if it should provide by law for the calling of a constitutional convention to revise or amend the Constitution of the state. In dealing with this question, consideration should be given first to the pertinent parts of our Constitution.

"Article I. Declaration of Certain Constitutional Rights and Principles.

"In order effectually to secure the religious and political freedom established by our venerated ancestors, and to preserve the same for our posterity, we do declare that the essential and unquestionable rights and principles hereinafter mentioned shall be established, maintained and preserved, and shall be of paramount obligation in all legislative, judicial, and executive proceedings.

"Section 1. In the words of the Father of his Country, we declare that 'the basis of our political systems is the right of the people to make and alter their constitutions of government; but that the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.'" "Article IV. Of the Legislative Power.

"Section 1. This constitution shall be the supreme law of the state, and any law inconsistent therewith shall be void. The general assembly shall pass all laws necessary to carry this constitution into effect. * * *

"Sec. 10. The general assembly shall continue to exercise the powers they have heretofore exercised unless prohibited in this constitution."

Article XIII. Of Amendments.

"The general assembly may propose amendments to this constitution by the votes of a majority of all the members elected to each house. Such propositions for amendment shall be published in the newspapers, and printed copies of them shall be sent by the secretary of state, with the names of all the members who shall have voted thereon, with the yeas and nays, to all the town and city clerks in the state. The said propositions shall be, by said clerks, inserted in the warrants or notices by them issued, for warning the next annual town and ward meetings in April; and the clerks shall read said propositions to the electors when thus assembled, with the names of all the representatives and senators who shall have voted thereon, with the yeas and nays, before the election of senators and representatives shall be had. If a majority of all the members elected to each house, at said annual meeting, shall approve any proposition thus made, the same shall be published and submitted to the electors in the mode provided in the act of approval; and if then approved by three-fifths of the electors of the state present and voting thereon in town and ward meetings, it shall become a part of the constitution of the state."

The Constitution contains no mention of a constitutional convention or of any method of constitutional change, except as above set forth. The title given in the Constitution to article 1, namely, "Declaration of Certain Constitutional Rights and Principles," shows that the right which is set forth in the first section is a constitutional and not a revolutionary right. It states in substance and effect that one of the fundamental rights, which, as the Preamble of this article says, "shall be established, maintained and preserved, and shall be of paramount obligation in...