The Providence news. (Providence [R.I.]) 1891-1906, 1893-05-16

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~phalanxes this morning when the decis-
ion Of the supreme court announcing the
dismissal of Mr.. Germans petition for
a new election in South K%inQstown was
handed down. Since rhe.court's decision
last Friday the Democrats have been in
high feather and the possibility of az
adverse d cision in the case against the
town clerk had not been for q moment
contemplated. There wat CONSERVATION
when it was earned this morn
ing that the court had refused to
Kingstown. Confident of success
the Democrats agreed yesterday with
the counsel Of the opposition to cali a
new election to be held on or before May
comfortable fact that the court declares
that no such election may be held. Mr..
German had also made elaborate prepar.
atoms TO petition for q new election In
the city Of Pawtucket. This scheme also
goes down before the courts broadside.
At Their Wits End.
The advocates OF a new election are
now at their wits end. Mr.. German and
Mr.. Brown Immediately betook them
selves to secret quarters, to mediate
upon the situation. The frayed ends of
the Democracy have no theories to ad-
vance and are waiting for advice and
comfort from their leaders. The text of
the rescript Is as follows:
State vs. TotOn Council Of South Kinosto,on. ST.
The annual election for senator and
representative in the town of South
KinRstown having failed, we are asked
to issue a mandamus to the town clerk
to call another election under Public
Statutes, chapter 10, section "a.
The section provided among other
things that whenever ia case of q failure
to elect the Office shall become or be
vacant the town clerk shall forthwith
issue his warrant for an election to I'LL
such vacancy. The argument is hat
article viii. section 8 Of the con-
%s,itution which limits the tune for
to a time not exceeding seven days from
the first meeting only applied to ad-
journment OF the ann ual town meeting,
and does not apply to the calling of a
new meeting after that time; that a fall
ure to elect creates IA vacancy aud that
the statute in each case makes IL the duty
of the town clerk to issue q call. We do
not think this Is so.
Would be In Conflict.
The statute is general In its terms and
applicable alike to all towns. But IL it
is to be taken to include all cases of fail
ure to elect 1t is clearly in conflict with
said article Of the constitu tion, as init
mated In u recent opinion to tie gov
ernor; In re- North Smithield election
Index. M. M.
While it is true that article viii. Sec
tion 5. can only apply to the common
town meeting, still, as to towns which
hold elections In that way the direction
is very explicit that all adjournments OF
ths. alnrfinno . mt fn AxnAnA aAwAn
days from the first meeting. To hold
that this direction only relates to adj
journment of the annual meeting
for seven days, that after each
time elections may be held without
limit would practically efYaoe the entire
emit with its plain purpose. The general
understanding of the section, az shown
by the practice under it. which is u
matter Ct common knowledge with
those familiar with the political his
tory Of the state, has been ON
trary to such a view. A closer inspection
Of the statutory clause in question nows
apply and that a conflict with the
constitution Is apparent only rather
than real when its special limita-
tions are carefully considered, and
these limitations depend on what consti-
tutes a vacancy. Article viii, section /,
Olatut COnStit utiOh SuoJ CndtOA3
Al 4 representatives shall hold their Office
until Others are legally chosen and duly
qualified to fill their places"
Must Hold Over.
When the time limited for elections has
expired without a choice no one Is or can
be illegally chosen" to hold the Office and
so the incumbent holds the Office for the
succeeding term. The Office. therefore.
Is not aud does not become va
cant. The provision In the ssatu,o
is not for case Of on-election
generally. but only for cases where ''the
event which will warrant action under
it must be a failure to elect under such
circumstances rs to trefA a vacancy out
side the provision OF the constitution.
In other words it must be q vacancy
where there Is no incumbent TO con-
tinue to hold the Office. The
research Of the counsel for the respond
ent has declared the occasion for The
passage Of the clause under consideration
as an amendment TO the statute as it
then existed, which at once reveals it's
rare cases to which 1t may apply. The
amendment was passed In April,
1875. following the first annual
election a Ger the division OF the
town OF North Providence. A part II
the town had been annexed 70 Providence
and n part 10 Pawtuckot. The represen-
tatiou had been re-distributed, giving six
commemorative to Pawtucket In place Of
two which IL had before.
The Pawtucket Case.
Al the annual election there was Q
s.,lure to elect the 9Th representative