The Providence news. (Providence [R.I.]) 1891-1906, 1893-05-06
SOUTH K|NGS7ONN CASES
Argued Before Full Bench in Supreme
Court This Morning.
G0RMAN AGAINST HOLD-OVERS.
Mr.. Bosworth Makes q sound Argument
In support OF the Republican Conten-
tion-He shows That Town Council
Cannot Legally Call q New Election.

cohNh Va WV ctR'e'fe ~NesN ".~-~ ----
ing. Attorneys Govman and Brown led
the forces of the Democrats. Two writs
Of mandamus were presented for judi
cial scrutiny. One served upon the town
clerk and the other served upon the
town council OF South Kingston. BY
this dual arrangement the Democrats
hope to have combination that will
force the court into corner and compel
them to order an election.
The first case heard was that OF the as
sistant attorney-generai against the
town clerk OF South Kingstown. The
petition calls for a writ OF mandamus
commanding the town clerk OF South
Kingstown Co issue his warrant for an
election of a senator and representative
from that town for the year beginning
Tuesday. MAY 10.
Mr. B sworth was given the floor fl rst
and proceeded to set forth his reasons
why an election could not le saly be or
dered by the court.
Mr.. Bosworth's Argument.
'In the North Smithfield case" said
Mr.. Bosworth, "the court held that the
word may have n double meaning. 1t
may refer o vacancy in the office itself
or a vacancy among the MEMBERSHIPS.
There is no vacancy In the Office In
consequence of a failure to eiecs. II
there were a vacancy there the consitu.
tion provides how that vacancy should
be filed"
Mr.. Bosworth went back to the ancient
laws of 1898 and followed them dowu
through their various transformations
to show what the exact legal position on
the question at present -.
IL is clear" continued Mr.. Bosworth,
"that the language of the statues be ar
ing upon this point refers strIcJly TO n
vacancy ia the Office and not In the m en-
bership."
The Democratic Side.
Mr. German then arose To argue his
side of the case. Under plurality rule
occur by reason Of illegally or fraud.
and the q Qlestion cannot be adjudicated
upon except In the body in which the
person declared elected holds q certifi-
cate.
A failure to elect under a majority
rule can be determined without such
judicial inquiry.
The town in which failure to elect is
declared is IN the same condition that it
would be II an election had been declared
and the person declared elected resigns,
removes or dies before qualifying. In
those cases the Office to be nlsd mas been
filled by the election and becomes va
can't by the subsequent event; so In the
case of declared failure to elect the
Office was to he flied, aud having failed
to Mi IL, it remains vacant and the town
upon whom the right of representation
Is conferred has the right just as much
in one case as the other to fill the Office.
Treatment of Constitutions.
Constitutions of governments are not
to he treated like legislative euactments.
They express its letter, but its spirit
which is as potent factor i'm it lies
buried in history. What constitution
prohibits must be clear; what it permits.
need not be, but may be made SO by the
legislature.
The general intent of the constitution
of Rhode Island is TO create a general
assembly as it's legislative Depart
ment, consisting of two houses of
members annually elected from the
different towns. To carry out that
intent 1t provides an annual elec-
and that the persons elected shall hold
their offices one year from day named
II absolute majorities were not re-
Quired in these elections no further pro-
vision would have Deen required in the
constitu ion the legislature could have
supplied all the rest which might be re-
quired for the conducting of these elec-
tlons.
Majority being required, however. a
condition was anticipated which would
have annihilated this gen eral intent. So
provision was made where 1t was neces-
sary to preserve 1t.
Election Of Assembly ymen.
When coming to provide for the cleo
task of providing for elections in the
towns aud one city by majorities con
from ted the trainers.
ture cou d not limit the right that like
proceedings shall be had until an cleo
tion shall take place.
1t Is clear that the trainers intended to
provide for che annual election OF sena-
tors and representatives and that the
proceedings should be continued until
the result was reached.
To guard against the power of ad journ-
ment being used injuriously this pro-
vision was adde1:
Provided, howe yer, that an adjourn
ment or aujourn ments OF the election
may be made to time not exceeding
seven days from the first meeting"
This was intended solely to prohibit
the adjournment ot the annual meeting
to beyond seven days, the usual period
r, ouired In notices for town meetings,
coatin ued Mr.. German. 1t was intended
To terminate tie annual iueesing ouly.
1t Is rare that proviso Is given In
constitution, but when used it should
lot be given greater or different .ff .ct
than when used in statute.
The Rule of Construction.
The general rule of construction OF q
statute or OF constitution is that when
there are several clauses which conflict
the last shall prevail. This, however,
does not apply To a section containing "A
proviso. the Office Of proviso is To ex
cept some particular case from ge neral
rinciple, where from peculiar circum-
stances attending the c Sc, there would
be some hardship IL it were not excepted
TO qualify, restrain or otherwise modify
the general language of an enacting
clause or 10 exclude some possible
grounds Of misiuterpretation.
am impressed that IL Is a constitu-
tional provision and not a statutory
enactment which Is under consideration.
but the question in nevertheless one in
volving ambiguity aud some rules Of
Interpretation NUT be resorted to.
Ia section o OF article 3 the right OF
the towns to proceed with the election
until au election shall take place Is re-
cognizsd and given, aud 1t was left to the