The Providence news. (Providence [R.I.]) 1891-1906, 1893-05-16
SECOND EDITION.
a O'clock.
NO NEW ELECTION.
CONTINUED FROM PAGE I.

rom Pawtucket. AS the Office had
never existed before, there was no IN
rumbent for the ensuing year. and 50
there was a vacancy. IL was a case OUT
side OF the provision of the constitution;
and made a clear vacancy which couiu
be filed under section 8 OF article VIII:
To the present 1t is not claimed
that the Offices are vacant other-
wise than by a failure to elect.
which, as we have seen, does not
of itself create n vacancy in the Office. AS
stated in our oninion IN re the Narragan-
and town council of South kingstown, In
dex M. NJ. The general assembly may
other Use provide as to the time OF the
election in towns which are divided into
voting districts and where such provisions
are exhausted. Then again the incum-
bent holds over under the first section OF
article viii, and there IS no vacancy III
the Office. Section 81 OF the statute
above referred TO provided for two other
cases, namely: one where there has been
an election, but a prospective vacancy In
the membership elect is caused by death
or OF herwise; and n where there has
been a failure to elect and an actual
vacancy exists for want OF an Dent
to hold the Office.
Not Within the Scope.
Neither of these two cases are within
the scope of article viii. section 8. the
purpose Of which is, so far as 1t apples,
to put an end to protracted and fruitless
struggles by continuing the tenure OF the
last person on whom the cleo
tors have been able to agree,
under section l OF the article.
The cases provided for by the statute are
covered by section 0 Of the same article.
provided fer filing vacancies In the
$500 - x.ra ~ anrooontatfva nv "a
new election; the word ''vacanci es," be-
ing there used in the sense Of prospective
as well as actual vacancies, as shown by
the use OF the word in other sec
tons of the article and the con-
tinuous and unquestioned practice under
It since the adoption OF the constitution.
In the North Smithfield election, Index
M. NJ. While the incumbent is still,
even In these cases, entitled TO hold the
Office until the qualification OF his sue
cessor, the same reason for placing a
limit to the time of the election, or
for refusing a new trial does not
apply; because what we have termed
reference to the memberSk ip-elect per-
son have been legally chosen. but they
cannot become duly qualified" and In
actual vacancies there Is nobody to hold
the Office.
In the former case an intention to I'LL
the OmCe has been SHOWN Dy al eleCtlobs
which has failed by the happening o.
some event and not by a mere failure to
elect. In the other case the failure TO
elect has left the Office vacant for want
Of an incumbent to hold 1t.
The Assembly May Act.
AS these cases are not embraced within
,he prohibition OF the constitution and
result In vacancies, as dis ingusshed
from mere failure to elect, the general
assembly may provide for a new election
to fill the prospective or actual vacancy
under the express provision OF the con-
stitufion. The case at bar does not fall
within these classes of cases because 1t
does not present the circumstances
under which, rs provided by the
statutes, a town clerk may issue
his call for an election. 1t simply shows
that there has been a failure TO elect,
but not such q failur. as creates "A
vacancy. present or prospective, for
want OF incumbents to fill the places.
South Kingstown Is divided into voting
distric s aud the procedure must be ac-
c rding to the special statute relating to
this town, which has been construed at
this term In state VS.. town council of
South kinRstown.
The petition must be dismissed.