In Re the Ballot Act

EXECUTIVE DEPARTMENT, PROVIDENCE, January 20, 1890.

To the Honorable the Justices of the Supreme Court of the State of Rhode Island:

GENTLEMEN: In accordance with the provisions of section 3, article 10, "Of the Judicial Power" of the constitution of the State, I respectfully request an opinion upon the following question of law:

"Is section 6 of chapter 731 of the Public Laws in conflict with sections 2 and 3 of article 8 of the constitution, `Of Elections,' or in conflict with any other article or section of the constitution of the State?"

Very respectfully submitted by HERBERT W. LADD, Governor, etc.

OPINION OF THE COURT.

To His Excellency Herbert W. Ladd, Governor of the State of Rhode Island and Providence Plantations:

We have received from your Excellency a communication requesting our opinion upon the following question:

"Is section 6 of chapter 731 of the Public Laws in conflict with sections 2 and 3 of article 8 of the constitution, `Of Elections,' or in conflict with any other article or section of the constitution of the State."

In response to this inquiry our opinion is, that chapter 731 of the Public Laws is not in conflict with sections 2 and 3 of article 8 of the constitution of the State.

From the reference to these sections we assume that the supposed difficulty relates to returning the votes cast to different officers. Section 3 requires that the names of persons voted for as general state officers shall be placed upon one ticket; that such votes shall be sealed up in open town meeting, and be sent to the secretary of state, to be counted at the ensuing May session of the General Assembly. Section 5 of article 8 requires that ballots for senators and representatives shall be counted in open town meeting, and the result declared. Section 6 of the same article, and chapter 10, § 19, of the Public Statutes, amended by Pub. Laws R.I. cap. 629, § 2, of April 19, 1887, requires ballots for other than general officers to be returned to the city or town clerks, to be counted by the mayor and board of aldermen or town council, as the case may be. From the language of section 6, chapter 731, of the Public Laws, it may be inferred that the act contemplates one ballot only, and that such ballot as a whole, because it contains the names of persons voted for as general officers, must be sent to the secretary of state, pursuant to said section 3, of article 8, thus preventing compliance with sections 5 and 6 of the same article, and with the law in regard to districted towns.

We do not think such an inference is necessary; on the contrary, chapter 731 clearly implies that such course is not to be taken. Section 14 requires the supervisors of elections to "make return by joint or separate report to the returning board or boards to whom said ballots are by law required to be returned." The intention evidently is that the ballots, with the report of the supervisors, shall go to the officers who are designated by the law to count them; that is, ballots for general officers to the secretary of state, and ballots for other officers to the mayor and board of aldermen, or to the town council.

If one ballot is used, then the part containing the names of general officers would have to be detached from the other part, and each part sent to the proper officer.

We see nothing in the law forbidding this, and we do not see how the supervisors can fulfil the duties imposed upon them without doing this, unless separate ballots should be used for the two classes. We do not see that this latter course would necessarily conflict with the statute, although the implication in section 18 and elsewhere is that one ballot will be used.

The sections of the constitution referred to in the question of your Excellency simply require the votes for general officers to be by ballot upon one ticket and returned to the secretary of state.

In either of the ways aforesaid these requirements can be complied with.

THOMAS DURFEE, CHARLES MATTESON, JOHN H. STINESS, P.E. TILLINGHAST, GEORGE A. WILBUR.