OPINION OP THE COURT.
To His Excellency D. Russell Brotvn, Governor of the State of Rhode Island and Providence Plantations :
In response to Your Excellency’s request for an opinion upon the question: “The Senator-elect from North Smith-field having died, has the town clerk of said town the right to order a new election for Senator in that town before the meeting of the body to which the deceased was elected ?” we have the honor to submit our opinion as follows :
The question arises under Public Statutes, chapter 10, section 27 : “Whenever any person elected Senator or Representative shall, at any time between his election and the expiration of his term, refuse to serve, and shall declare the same to the Town Clerk of the town for which he is elected, or shall die, resign, or remove out of the State, or whenever, in case of a failure to elect at the annual meeting, or any adjournment thereof, the office shall become or be vacant, the Town Clerk shall forthwith issue his warrant for an election to fill such vacancy, unless a special election for that purpose shall be ordered by the house in which the vacancy may occur.”
In construing this section its history is instructive. The original provisions were contained in two sections of an act passed in September, 1761. The first section made it the
duty of the town clerk to issue a warrant for a new election when a deputy should refuse to serve at the session to which he was chosen, and the second section also made it the duty of the town to proceed to choose another deputy forthwith when any deputy should die or remove out of the colony between the time of his election and the session of the Assembly to which he was chosen, or after he had taken his engagement and attended such session ; the town clerk issuing the warrant as before. These provisions were plain and left the duty solely with the town clerk, and this law remained unchanged down to January, 1843. An act was passed June, 1839, directing the Speaker of the House to issue his warrant for an election in case of a vacancy in the Senate, the senators then being general officers and not elected from towns.
In January, 1843, the following act was passed, which ■now appears in Public Statutes, chapter 18, section 9 : “If any vacancy shall happen in either house during any session of the General Assembly, the house in which it occurs may order a new election, and appoint such time therefor and give such notice thereof as it may deem proper. ”
At the same session, January, 1843, a new election law was passed, putting the two sections of the law of 1161 into one section, still making it the duty of the town clerk, upon the happening of either of the events specified, to issue his call forthwith, but with this limitation : “Unless a special election for that purpose shall be ordered by the house in which the vacancy happens.” And, so the law remains at present, except that at the January session, 1815, an amendment was added extending the duty to a case of non-election, which appears to be in conflict with Article 8, section 5, of the Constitution.
It is the clause above quoted which cre
ates the ambiguity in the section ; but, in view of its origin, we think its construction is plain. Down to 1813 the town clerk had the sole authority to call a new election in the case of the death, removal or refusal to serve of a member-elect of the General Assembly, and then authority was given to either house to order an election to fill a vacancy which should occur during the session. In consolidating the two sections relating to the town clerk, his duty, which had before extended to all cases, had to be limited by this newly added exception, and the use of the word £ £ forthwith ” points to the happening o.f the events rather than to the future failure of the house to act. It may be said that this exception gives a power to the Senate or House to call an election by implication. The two acts must be construed together, and, so taken, the clause £ £ unless a special election for that purpose shall be ordered by the house in which the vacancy may occur ” is fully satisfied by reference to the power contained in section 9. Being an exception to the power of the town clerk, as no authority is anywhere else given to a single house to order an election for any vacancy other than one occurring during a session, we think it means the same as though it said : ££ Unless a special election shall be ordered under the power as given in said section 9.” Consequently the authority of the town clerk remained unchanged as to all other vacancies, and it was still his duty to issue the call in all cases except where authority is given to the House, which, by reference, is only the case of a vacancy occurring during a session.
It may also be said that the Constitution, in Article 8, section 1, provides, as far as may be, that no town shall be without a representation ; by allowing a Senator or Eepresentative to hold his office until another is £ £ legally chosen and duly qualified ” to fill the place ; and so there is no vacancy. While this right of the present member is thus given, he sits by virtue of his membership in the present House and not by virtue of any other membership in the House-elect. The word vacancy is used in part with reference to the incoming House, in the sense of a vacancy in the
members-elect, and not simply with reference to an actual vacancy in tbe representation of the town ; for there can be no vacancy in the representation so long as the old member is present to act before the qualification of his successor ; and hence, upon the assumption stated, there could be no vacancy at all until the old member, also, should die, or in some way become disqualified. This, clearly, is not the meaning of the statute, because it expressly provides for the case of a member-elect who refuses to serve ; and the same use of the word “vacancy” is found in Article 8, section 8, of the Constitution, in the case of a vacancy by non-election. In all cases of ambiguous expression, arguments may be adduced for and against a given construction ; but in this case, we think its occasion and purpose are so plain as to leave little room for doubt as to its real meaning. As both provisions have remained substantially unchanged, we think they should be taken to have the same meaning which they evidently had originally, and to be applicable to both the kinds of vacancies which are recognized in Article 8, Section 8, of the Constitution. Our opinion, therefore, is that in all the events specified in section 27, above quoted, the town clerk has the right and duty to call a new election, unless the event shall happen during the session of the Assembly, when it may be called by the house in which the vacancy may occur. The correctness of this conclusion is fortified by the practice which has obtained under the statute. For example, in January, 1853, William A. Roberts, a Representative from Scituate, died during the session and a new election was ordered by the House. In January, 1868, Richard Sanders, a Representative from Providence, died during the session, and the call for an election was issued by the city clerk. In May, 1874, Daniel T. Swinburne, a Representative-elect from Newport, died during the session, and a new election was called by the city clerk. December 4, 1875, Frederick A. Pratt was elected a Representative from Newport in place of William H.
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OPINION OP THE COURT.
To His Excellency D. Russell Brotvn, Governor of the State of Rhode Island and Providence Plantations :
In response to Your Excellency’s request for an opinion upon the question: “The Senator-elect from North Smith-field having died, has the town clerk of said town the right to order a new election for Senator in that town before the meeting of the body to which the deceased was elected ?” we have the honor to submit our opinion as follows :
The question arises under Public Statutes, chapter 10, section 27 : “Whenever any person elected Senator or Representative shall, at any time between his election and the expiration of his term, refuse to serve, and shall declare the same to the Town Clerk of the town for which he is elected, or shall die, resign, or remove out of the State, or whenever, in case of a failure to elect at the annual meeting, or any adjournment thereof, the office shall become or be vacant, the Town Clerk shall forthwith issue his warrant for an election to fill such vacancy, unless a special election for that purpose shall be ordered by the house in which the vacancy may occur.”
In construing this section its history is instructive. The original provisions were contained in two sections of an act passed in September, 1761. The first section made it the
duty of the town clerk to issue a warrant for a new election when a deputy should refuse to serve at the session to which he was chosen, and the second section also made it the duty of the town to proceed to choose another deputy forthwith when any deputy should die or remove out of the colony between the time of his election and the session of the Assembly to which he was chosen, or after he had taken his engagement and attended such session ; the town clerk issuing the warrant as before. These provisions were plain and left the duty solely with the town clerk, and this law remained unchanged down to January, 1843. An act was passed June, 1839, directing the Speaker of the House to issue his warrant for an election in case of a vacancy in the Senate, the senators then being general officers and not elected from towns.
In January, 1843, the following act was passed, which ■now appears in Public Statutes, chapter 18, section 9 : “If any vacancy shall happen in either house during any session of the General Assembly, the house in which it occurs may order a new election, and appoint such time therefor and give such notice thereof as it may deem proper. ”
At the same session, January, 1843, a new election law was passed, putting the two sections of the law of 1161 into one section, still making it the duty of the town clerk, upon the happening of either of the events specified, to issue his call forthwith, but with this limitation : “Unless a special election for that purpose shall be ordered by the house in which the vacancy happens.” And, so the law remains at present, except that at the January session, 1815, an amendment was added extending the duty to a case of non-election, which appears to be in conflict with Article 8, section 5, of the Constitution.
It is the clause above quoted which cre
ates the ambiguity in the section ; but, in view of its origin, we think its construction is plain. Down to 1813 the town clerk had the sole authority to call a new election in the case of the death, removal or refusal to serve of a member-elect of the General Assembly, and then authority was given to either house to order an election to fill a vacancy which should occur during the session. In consolidating the two sections relating to the town clerk, his duty, which had before extended to all cases, had to be limited by this newly added exception, and the use of the word £ £ forthwith ” points to the happening o.f the events rather than to the future failure of the house to act. It may be said that this exception gives a power to the Senate or House to call an election by implication. The two acts must be construed together, and, so taken, the clause £ £ unless a special election for that purpose shall be ordered by the house in which the vacancy may occur ” is fully satisfied by reference to the power contained in section 9. Being an exception to the power of the town clerk, as no authority is anywhere else given to a single house to order an election for any vacancy other than one occurring during a session, we think it means the same as though it said : ££ Unless a special election shall be ordered under the power as given in said section 9.” Consequently the authority of the town clerk remained unchanged as to all other vacancies, and it was still his duty to issue the call in all cases except where authority is given to the House, which, by reference, is only the case of a vacancy occurring during a session.
It may also be said that the Constitution, in Article 8, section 1, provides, as far as may be, that no town shall be without a representation ; by allowing a Senator or Eepresentative to hold his office until another is £ £ legally chosen and duly qualified ” to fill the place ; and so there is no vacancy. While this right of the present member is thus given, he sits by virtue of his membership in the present House and not by virtue of any other membership in the House-elect. The word vacancy is used in part with reference to the incoming House, in the sense of a vacancy in the
members-elect, and not simply with reference to an actual vacancy in tbe representation of the town ; for there can be no vacancy in the representation so long as the old member is present to act before the qualification of his successor ; and hence, upon the assumption stated, there could be no vacancy at all until the old member, also, should die, or in some way become disqualified. This, clearly, is not the meaning of the statute, because it expressly provides for the case of a member-elect who refuses to serve ; and the same use of the word “vacancy” is found in Article 8, section 8, of the Constitution, in the case of a vacancy by non-election. In all cases of ambiguous expression, arguments may be adduced for and against a given construction ; but in this case, we think its occasion and purpose are so plain as to leave little room for doubt as to its real meaning. As both provisions have remained substantially unchanged, we think they should be taken to have the same meaning which they evidently had originally, and to be applicable to both the kinds of vacancies which are recognized in Article 8, Section 8, of the Constitution. Our opinion, therefore, is that in all the events specified in section 27, above quoted, the town clerk has the right and duty to call a new election, unless the event shall happen during the session of the Assembly, when it may be called by the house in which the vacancy may occur. The correctness of this conclusion is fortified by the practice which has obtained under the statute. For example, in January, 1853, William A. Roberts, a Representative from Scituate, died during the session and a new election was ordered by the House. In January, 1868, Richard Sanders, a Representative from Providence, died during the session, and the call for an election was issued by the city clerk. In May, 1874, Daniel T. Swinburne, a Representative-elect from Newport, died during the session, and a new election was called by the city clerk. December 4, 1875, Frederick A. Pratt was elected a Representative from Newport in place of William H. Ashurst, who resigned between the sessions. In June, 1878, Benjamin Bufifum, a Representative-elect from Warwick, died after the May session, in which he had not
taken his seat. His successor was elected July 24, 1878. Hon. Pardon E. Tillinghast resigned the office of Senator from Pawtucket after the adjournment of the Assembly in June, 1881, and his successor was elected June 15, 1881. Hon. Henry J. Spooner resigned the office of Representative from Providence in November, 1881, and his successor was elected November 22, 1881. Stephen Waterman, a Representative from Providence, died in 1871, and Isaac Shove, a Representative from Pawtucket, resigned in 1874, both vacancies occurring between sessions, and their successors were chosen before the January session following. In these last six cases the new elections could not have been called by either house, because the Assembly was not in session ; and they must, therefore, have been called by the town or city clerk. At the January session, 1885, Hon. George A. Wilbur, Senator from Woonsocket, and Hon. David S. Baker, Jr., Senator from North Kingstown, resigned their offices ; whereupon new elections were ordered by the Senate. The same course was followed upon the resignation of Hon. William W. Douglas, Senator from Providence, during the session of 1891. Prom these examples, which are all that have come to our notice, it appears that no election has been ordered by either house except for a vacancy occurring during a session. This uniform practice confirms our opinion of the proper construction of the statute.
Charles Matteson,
John H. Stiness,
P. E. Tillinghast,
George A. Wilbur,
Horatio Rogers,
Wm. W. Douglas.