State v. Town Council of S. Kingstown

• Decision Date: 22 April 1893
• Citation: 18 R.I. 258,27 A. 599
• Parties: STATE v. TOWN COUNCIL OF SOUTH KINGSTOWN.
• Court: Rhode Island Supreme Court

27 A. 599

18 R.I. 258

STATE

v. TOWN COUNCIL OF SOUTH KINGSTOWN.

Supreme Court of Rhode Island.

April 22, 1893.

This petition preferred by the attorney general sets forth that an elective meeting to choose a senator and representatives from the town of South Kingstown to the general assembly of the state was holden on the first Wednesday in April, 1893, and failed to elect, no person voted for having a majority of the votes cast; that pursuant to Pub. Laws R. I. c. 710, § 18, of March 22, 1888, the town council ordered a new election to be holden April 14, 1893, which duly took place, and also resulted in a failure to elect; that the town council thereafter neglected and refused to order another election, and thereby violated its statutory duty. The petition was filed asking for a writ of mandamus to compel the town council to order a new election. The respondents demurred.

Pub. St. R. I. c. 10, § 18, provides: "Sec. 18. In cities other than the city of Providence, and in towns divided into voting districts, ward and district meetings held therein respectively for the election of senator and representatives, and of members of the town council, or of any one or more of them, shall, at the time of closing the polls therein prescribed by law, stand adjourned to the third day next from and after the day so appointed, unless the said third day shall fall on Sunday or on a holiday, and in that event, to the Monday, or the day following said holiday, with like adjournment therefrom, but no adjournment or adjournments shall exceed seven days from the first meeting." Pub. Laws R. I. c. 710, §§ 17, 18, of March 22, 1888, incorporating the district of Narragansett, in South Kingstown, R. I., provide: "Sec. 17. The town council of South Kingstown shall proceed within two days next after the election to count the ballots in the same manner as is prescribed in section 14 of chapter 10, of the Public Statutes for the counting of ballots by the moderators and clerks of town and ward meetings and shall forthwith declare the result. Sec. 18. If no election shall have been made of senator and representative in the general assembly or of either of them upon the day appointed by law for any election the said town council shall order a new election to be held not more than ten days from the first election and so on until the election shall be completed." Pub. Laws R. I. c. 923, of March 26, 1891, is as follows: "An act in amendment of chapter 10 of the Public Statutes. It is enacted by the general assembly as follows: Section 1. Section 18 of chapter 10 of the Public Statutes is so amended as to read as follows: 'Sec. 18. In cities other than the city of Providence, and in towns divided into voting districts, ward and district meetings held therein respectively for election of senator and representatives, and of members of the town council, or of any one or more of them, shall, at the time of closing the polls therein prescribed by law, stand adjourned to the third day next from and after the day so appointed, unless the said third day shall fall on Sunday, or on a holiday, and in that event, to the Monday, or the day following said holiday, with like adjournment therefrom: provided, however, that in Hopkinton there shall be no election held on Saturday, and if the third day fall on Saturday the meeting shall stand adjourned to the Monday following, being five days from and after the day so appointed, with like adjournment therefrom, but no adjournment or adjournments shall exceed seven days from the first meeting.' Section 2. All acts or parts of acts inconsistent herewith are hereby repealed, and this act shall take effect from and after its passage."

The matter came on for hearing before MATTESON, C. J., and STINESS and DOUGLAS, JJ.

Arthur L. Brown and Charles E. Gorman, for petitioner.

Benjamin M. Bosworth, for respondents.

PER CURIAM. The court is of the opinion that it has no jurisdiction to grant the writ prayed for, since Const, art. 4, § 6, provides that "each house [of the general assembly] shall be the judge of the elections and qualifications of its members." Should the court by its writ require the town council to fix a day for a new election beyoud the 10 days specified in Pub. Laws R. I. c. 710, § 18, of March 22, 1888, thereby impliedly holding that a new election so hold would be legal and binding, and an election of senator and representative should then be made, the senate and house of representatives, being, under the provisions of the constitution quoted, judges of the elections and qualifications of their respective members, might nevertheless determine that such election was void, and thereby render the action of the court nugatory. The court is therefore of the opinion that it is for the general assembly to provide a remedy for the failure of the town council to call an election for senator and representative within the period limited, and not for the court Weeden v. Town Council, 9 R. L 128, 131.

On Rehearing.

(May 3, 1893.)

DOUGLAS, J. The question of Jurisdiction lies at the threshold of this proceeding, and requires careful consideration. The constitution secures to the electors of the several towns the right to choose annually their senators and representatives in the general assembly. When the attempt to elect at the annual election meeting is unsuccessful, the constitution, where its provisions are applicable, or the statutes where it is silent, provide for adjournments of the election within certain limits. It is alleged that the statute relating to South Kingstown provides for successive elections until a result is reached. The town council refuse to call a new election, and the first ground taken in opposition to this application is that, if it is their duty to call such election, this court has no jurisdiction to ascertain and enforce that duty. This contention is based upon the fact that each house of the general assembly is the judge of the elections and qualifications of its members; and it is argued that, as the legality or illegality of the holding of the election itself may be a controlling issue in deciding upon the status of a person claiming to be elected, and so become an issue which the house in which he claims membership can alone decide, this court is precluded from any examination or decision of that question. It seems to us that this reasoning is fallacious, and involves assumptions which are subversive of the established distinctions between the several branches of the government. In the first place, it assumes that the decision of either house in the general assembly, acting under this power, has the effect of declaring the law. This is clearly not so, for the senate may seat a senator, and the house of representatives may refuse to seat a member-elect to that house, both coming with similar credentials from the same election; and the senate may specify as the ground of their action that the election was lawfully held, and the house may justify their action on the ground that the election was not lawfully held. Under the constitution, the action of each house with respect to the person claiming to be elected is valid and final; but none of the steps by which that action was reached, and none of the reasons assigned by either house, though they were spread by resolution upon its records, would have any force as declaring the law beyond the case then decided. Neither house of the legislature, by itself, can either make or authoritatively interpret the law as a rule for others. The making of the law under the constitution requires the concurrent vote of both houses; and the declaration or authoritative interpretation of the law, so as to form a precedent for subsequent cases, is for the courts. "To declare what the law is or has been is a judicial power; to declare what it shall be is legislative." Cooley, Const. Lim. 113. The late Chief Justice Ames, in Taylor v. Place, 4 R. I. 324, says, (page 361:) "Neither the convention which framed the constitution, nor its members, nor the members of the general assembly, nor even the general assembly itself, can authoritatively expound the constitution; but only the courts." Maxwell, J., in State v. Elder, (Neb.) 47 N. W. Rep. 710, 716, says: "But it is said that the legislature is a co-ordinate branch of the government, and that it is entitled to construe the constitution and statutes for itself, and therefore is not governed by the construction placed upon it by the supreme court. That it is a very important co-ordinate branch of the government is true, and the supreme court has never, except when its action was invoked in some of the modes pointed out by the law, sought to construe statutes or constitutional provisions for the legislature. It is the province of the legislature, however, to pass laws, and of the courts to construe the constitution and the laws. * * * It is the duty of the court to carefully investigate every case brought before it, and, after due consideration, place what it believes to be a correct construction upon the language of any of the provisions of the constitution or of the statutes; and such construction binds every department of the government, including the legislature, and every person within the state. The construction given by the supreme court becomes the standard to be applied in all cases." And again, (page 717:) "The legislature is a lawful body, elected and organized in pursuance of the constitution and the laws for a lawful purpose; and while, within the limits and restrictions of the constitution, it may pass any measure it may deem proper, yet morally it is bound by the same considerations of fairness and justice which control the courts, and it is its duty to dispose of election contests in this manner."

It is doubtless in the power of either house of a future legislature, in its action upon election cases, to disregard equally the statutes and the decisions of the courts; but we see...