State v. Carroll

• Decision Date: 06 February 1892
• Parties: STATE v. CARROLL.
• Court: Rhode Island Supreme Court

24 A. 106

STATE

v. CARROLL.

Supreme Court of Rhode Island.

Feb. 6, 1892.

An Information was filed by the attorney general, on the relation of certain qualified electors of the city of Pawtucket, against Hugh J. Carroll, to test his title to the office of mayor of the city. Respondent demurred.

Nicholas Van Slyck, James M. Ripley, and Cyrus M. Van Slyck, for relators.

John M. Brennan, Charles H. Page, George J. West, Thomas W. Robinson, and Claude J. Farnsworth, for respondent.

MATTESON, C. J. This is an Information, In the nature of a quo warranto, to try the title of the respondent to the office of mayor of the city of Pawtucket. It sets forth that ward meetings for the election of city officers were legally held in Pawtucket on December 2, 1891. That the ballots were legally returned and counted by the board of aldermen on December 3, 1891, within 48 hours after the closing of the polls, in accordance with the provisions of Pub. Laws R. I. c. 474, § 16, cl. 1. That the board of aldermen forthwith, on the date last named, declared the result of the election of mayor to be as follows: "Hugh J. Carroll has 2,111 ballots, Albert R. Sherman has 1,557 ballots, David J. White has 575 ballots, Charles F. Burnham has 1 ballot, Frederic C. Sayles has 1 ballot; and there is no election." That thereupon the board of aldermen, on the same day, ordered the city clerk to issue his warrant for another election, to be held on Saturday, December 5, 1891. That thereupon the city clerk, on December 4, 1891, issued his warrant for the election so ordered to be held on December 5, 1891, and warned and notified the electors of the city of Pawtucket to assemble in ward meetings on December 5, 1891, at 8 o'clock, in the various ward rooms, and afterwards, in the afternoon of the same day, caused notices stating the time and place of such election, and the officer to be chosen, to be posted in 20 public places in the city. The information also goes on to state that in pursuance of the action of the board of aldermen aforesaid a pretended election was held on December 7, 1891, and that the respondent received a majority of all the ballots given in for mayor at such pretended election, and avers that said election was illegal and void, and that the respondent on January 4. 1892, entered upon and used and exercised, and from that time to the tiling of the information has continued to use and exercise, without lawful warrant, the office of mayor of said city, etc. The respondent has demurred to the information.

Pub. Laws R. I. c. 474, March 27, 1885, Is entitled "An act to establish the city of Pawtucket." Section 14 of that act provides that "elections of city and state officers * * * shall be made in ward meetings, which shall be warned and notified by the city clerk, who shall cause notices stating the time and place for such election, and the officers to be chosen, to be posted up at least seven days before such election, in three public places in each ward, respectively. * * *" Section 16, cl. 2, of the same act, provides that "in case of failure to elect any officer under the provisions of this act, or in case any officer shall die before qualifying or shall neglect to qualify, or shall refuse to accept the office to which he is elected, the board of aldermen shall order the city clerk to issue his warrant for another election to fill the vacancy, and so on from time to time until all such offices shall have been filled." The relators contend that section 14 applies to all elections held under section 16, cl. 2, and hence that the ward meetings for the purpose of holding such elections should be warned and notified by the city clerk, by causing notices stating the time and place of such elections, and the officers to be chosen, to be posted up at least seven days before such elections, in three public places in each ward, respectively, and that as the order of the board of aldermen on December 2, 1891, fixed the time of holding the election in question for December 5, 1891, only three days afterwards, so that the city clerk could not post the notices seven days before the election in three public places in each ward, the election was illegal and void. The respondent on the other hand contends that section 14 applies only to first elections, but does not extend to a second or adjourned election, held in case of a failure to elect at the first or prior election; that such second election is, in effect, merely a second balloting in continuation of the first election.

We find nothing in the statute to warrant such a construction of the words "another election" as the respondent seeks to give them. It contains no provisions such as are contained in Pub. St. R. I. c. 10, §§ 18, 22, whereby an election stands adjourned to a subsequent day, and whereby, in case of a failure to elect on the first balloting, a warrant is issued by the mayor, if the election is held in a city, to the wardens of the several wards, or by the president of the town council, if the election is held in a town divided into voting districts, to the moderators of the several district meetings, directing the election to proceed on the day to which the meetings stand adjourned. Nor does it contain any provision authorizing an adjournment or continuance of the election on a subsequent day. It evidently contemplates that when the votes have been given in, returned, and counted, and the result declared, the election is at an end. In case of a failure to elect at that election the board of aldermen are directed to order the city clerk to issue his warrant for another election; that is, a new election. This view is strengthened by the consideration that the direction to order the city clerk to issue his warrant for another election is not limited simply to the case of a failure to elect, but extends also to the case of an officer who shall die before qualifying or shall neglect to qualify, or shall refuse to accept the office to which he is elected, in which cases, unquestionably, the election must be a new and independent election. If the election so directed to be ordered is a new and independent election, and not a mere continuation or adjournment of the former, as we feel constrained to hold, we think...