Powers ex rel. La Belle v. Monahan

• Decision Date: 29 May 1957
• Docket Number: No. 2593,2593
• Citation: 85 R.I. 398,132 A.2d 97
• Parties: William E. POWERS, Atty. Gen., ex rel. Joseph A. LA BELLE v. Joseph A. MONAHAN, Jr. Eq.
• Court: Rhode Island Supreme Court

Page 97

132 A.2d 97

85 R.I. 398

William E. POWERS, Atty. Gen., ex rel. Joseph A. LA BELLE v.Joseph A. MONAHAN, Jr.

Eq. No. 2593.

Supreme Court of Rhode Island.

May 29, 1957.

Letts & Quinn, Daniel J. Murray, Jerome B. Spunt, Domenic A. DiSandro, Jr., Providence, for petitioner.

Jackvony & De Conti, Louis V. Jackvony, Jr., Providence, for respondent.

CONDON, Justice.

This is a petition in equity in the nature of quo warranto to determine the lawful holder of the office of highway surveyor in the town of Narragansett.

We heard the case on an agreed statement of facts.It appears therefrom that Joseph A. LaBelle and Joseph A. Monahan, Jr., hereinafter referred to respectively as the relator and the respondent, were candidates for the office in question at the general election held on November 6, 1956.It further appears that the relator received 803 votes and the respondent 797; that 82 civilian absentee and shut-in votes were also cast but were not counted, because 75 were cast before election day and 7 could not be allocated to either candidate on account of the fact that the ballots had been separated from the envelopes in which they were received and it was thus impossible to determine which 7 ballots out of the 82 had been legally cast on election day.It also appears that the state board of elections directed the board of canvassers to count only such civilian absentee and shut-in ballots as they could determine had been voted on election day; that they rejected one civilian absentee ballot, one civilian shut-in ballot, and one war ballot, all of which had been marked, identified, and segregated during the count by the board of canvassers; that said board decided there had been no election of highway surveyor, since there were 7 civilian absentee and shut-in ballots which could affect the result of the election if it were possible to ascertain them; and that on February 8, 1957they so reported to the town council which on the same day in special executive session elected respondent on the authority of General Laws 1938, chapter 332, § 9.

On February 11, the next business day, over the protest of the relator who was the incumbent, respondent took possession of the office and since has kept the relator out of possession thereof.The relator contends that respondent's purported election is illegal, and that he thereby usurps and unlawfully withholds the office from him, the rightful holder.

The relator relies on the following grounds to establish the superior strength of his title over that of respondent.He contends that civilian absentee and shut-in ballots are not authorized in a municipal election and therefore neither the state board nor the board of canvassers may validly count any of them; that if they may be validily cast the general assembly may constitutionally authorize them to be cast before election day, since the case of Roberts v. Board of Elections, R.I., 129 A.2d 330, does not apply to municipal elections; that the board of canvassers erred in rejecting the three segregated ballots; and that if they were legally rejected and there was no valid election as the board of canvassers decided, nevertheless the town council had no authority to elect respondent, since in such a case it is provided by G.L.1938, chap. 315, § 2, that the polls may be reopened and a new election by the people had until a choice is made by them.

In support of his first ground, the relator contends that there is no statute which implements the constitutional amendment authorizing civilian absentees and shut-ins to vote so far as municipal elections are concerned.We cannot agree with that contention.It is true that the general assembly has failed to provide in detail for the counting of such ballots as it did in implementing article XXII of amendments to the stateconstitution authorizing the casting and counting of war ballots in municipal elections, but we think we should liberally construe the existing statutes so as to save all of such ballots, if it is constitutionally possible to do so, for the same reasons as given in Roberts v. Board of Elections, supra.

By enacting Public Laws 1953, chap. 3204, secs. 7 1/2and7 1/2A, the legislature apparently assumed that it had implemented the constitutional amendment authorizing civilian absentees and shut-ins to vote in municipal elections.We concede that a construction based on such an assumption is not easily made and in some circumstances in a future election may not be reasonably possible to apply.For that reason it would be eminently desirable if the general assembly would clarify the statutes to prevent any untoward result in the future.However, we now hold that there is at least an indirect implementation of such amendment in the existing statutes which reasonably warrants the receiving and counting of civilian absentee and shut-in ballots in municipal elections.

The relator's second ground is well taken.The general assembly has full power to prescribe the time and manner of holding municipal elections.Opinion to the House of Representatives, 80 R.I. 288, 96 A.2d 627.Insofar as those elections are concerned, the general assembly is not limited in the exercise of such power as it is in providing for the election of state officers under article XVI of amendments to the stateconstitution.Nor does article XXIII of amendments, in conferring upon civilian absentee and shut-in voters the right to vote in municipal elections, place any restrictions upon the plenary power of the general...