In Re Budlong , 15 R.I. 332 ( 1886 )

Public Laws, R.I. cap. 595, of May 27, 1886, is as follows: —

"SECT. 1. The legal voters of the Town of Cranston shall, at their annual meetings for the election of town officers, elect a moderator, town clerk, town council, town treasurer, and justices of the peace, provided, that the election of said town officers shall be by ballot, either written or printed, and provided also that the names shall all be placed on one ballot.

"SECT. 2. At the said annual meetings of the legal voters of said town the polls shall be kept open from the hour of nine o'clock A.M. to five and a half o'clock P.M.

"SECT. 3. The town council of said town shall and may hereafter, at their meeting next following the annual election, choose and elect so many town officers as by law of the State are or shall be required, excepting such as are directed by this act to be otherwise elected.

"SECT. 4. The town council elected as hereinbefore provided shall consist of seven members, and all the officers of said town shall hereafter be elected according to the provisions of this act, and officers so elected shall have all the authority and be subject to all the duties appertaining by law to their several offices.

"SECT. 5. All acts and parts of acts inconsistent herewith are hereby repealed.

"SECT. 6. This act shall take effect immediately."

A town meeting for the election of town officers was held in Cranston, June 7, 1886, from 9 A.M. to 5.30 P.M. Five town councilmen were at its close declared elected, but no person was elected to the position of first town councilman, nor to that of third town councilman. It was voted by acclamation that the polls be reopened. The polls were reopened at 9 o'clock P.M., when J. Titus Andrews was nominated and elected by acclamation as first town councilman, and Eleazer Tandy was nominated and elected by acclamation as third town councilman, and the meeting adjourned. James A. Budlong was, in A.D. 1885, elected first town councilman, and Phineas A. Conley third town councilman. Both qualified.

The question submitted to the court was whether Andrews and Tandy were duly elected, or whether Budlong and Conley were still in office, under Pub. Stat. R.I. cap. 27, § 22, which provides:

"All town officers shall hold their offices until the next annual election of town officers, and thereafter until their successors shall be lawfully qualified to act, unless where it is expressly provided to the contrary." The court is of the opinion that J. Titus Andrews and Eleazer Tandy were not legally elected first and third councilmen respectively of the town of Cranston, June 7, 1886, first, because the special act in relation to the election prescribes that it shall be by ballot, either written or printed, and the vote by which the said Andrews and Tandy claim to have been elected was viva voice; second, because said act makes no provision for a reopening of the polls on the day of the election in case of a failure to elect. If the town has power to hold a new election, it must hold it by adjournment from day to day, under Pub. Stat. R.I. cap. 35, § 3, which provides: —

"If, on the day of annual election of town officers, any town shall fail to make an election of town clerk, town council, justices of the peace, or town treasurer, the meeting may be adjourned for the purpose of completing the election of those officers, but of no others, from day to day, not exceeding three days beyond the first day of meeting." —

The polls to be kept open for the new election from 9 o'clock A.M. to 5.30 P.M., and the votes to be by ballot, printed or written.

We are of the opinion that James A. Budlong and Phineas A. Conley hold over as first and third councilmen respectively, under Pub. Stat. R.I. cap. 37, § 22.

Order accordingly.