In Re the Realty Voters

"From and after that time, every such citizen who has had the residence herein required, and whose name shall be registered in the town where he resides, on or before the last day of December, in the year next preceding the time of his voting, and who shall show by legal proof that he has for and within the year next preceding the time he shall offer to vote paid a tax or taxes assessed against him in any town or city in this State, to the amount of one dollar, or that he has been enrolled in a military company in this State, been equipped and done duty therein, according to law, and at least for one day during such year, shall have a right to vote in the election of all civil officers, and on all questions in all legally organized town or ward meetings: Provided, that no person shall at any time be allowed to vote in the election of the city council of the city of Providence, or upon any proposition to impose a tax, or for the expenditure of money in any town or city, unless he shall within the year next preceding have paid a tax assessed upon his property therein, valued at least at one hundred and thirty four dollars."

Doubts having arisen whether the proviso which concludes section 2 as above cited was confined in its application to the paragraph in which it stands, or applied also to section 1, the Governor, acting under article 10, section 3, of the Constitution of the State, which provides that "the judges of the Supreme Court shall give their written opinion upon any question of law whenever requested by the Governor," requested upon this point the opinion of the justices of the court.

OPINION OF THE COURT.

To His Excellency Alfred H. Littlefield, 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, to wit:

"Does the proviso in section 2, of article 2, of the Constitution of this State apply to owners of real estate in the city of Providence, so that such owners, being otherwise entitled to vote in the election of the city council of the city of Providence, or upon any proposition to impose a tax, or for the expenditure of money in said city, cannot vote unless they have paid the tax assessed upon their real estate in said city, valued as in said proviso mentioned, within the time limited in said proviso?"

In reply to this question we have to say that our opinion is, that the proviso mentioned is simply a proviso to the last clause of section 2, and only limits the right of voting conferred by that clause. That clause confers the right broadly; the proviso introduces a qualification. It is true the words "no person" used in the proviso are comprehensive enough, taken absolutely, to extend to voters under the first as well as under the second section. But, in our opinion, they are not to be taken absolutely. They are to be taken as part of a proviso to the last clause of section 2, and, so taken, they mean "no person" of the classes of persons there designated. If we go back to section 1, we find this view strongly confirmed by the structure of the section. It confers the right of voting on citizens who have freehold qualifications. It gives them the right to vote "in the election of all civil officers, and on all questions in all legal town or ward meetings." A right to vote for "all civil officers" of course includes a right to vote for city councilmen of the city of Providence. There is nothing in section 1 to restrain the right to voters who have paid their taxes. The section is complete in itself, and ought to be construed by itself, unless it is clearly qualified by some provision elsewhere in the Constitution. The section was copied with some variations, immaterial to the question here, from the statute prescribing the qualification for freemen, which existed prior to the Constitution. Under the statute, the freeman's right to vote in any election, or on any question, was not dependent on the payment of taxes. The presumption is that the right was intended to be preserved without abridgment. There is reason, too, for a discrimination in favor of the real estate voter, inasmuch as his real estate is immovable, and if his taxes are not paid, they are, nevertheless, secured or securable on it. Moreover, unless we are misinformed, this is the construction which has been acted upon ever since the Constitution went into effect, and which has been repeatedly recognized by the legislature and the courts. In a matter of this kind, a uniform, practical, and especially a legislative construction, is entitled to great authority.

In conclusion, we repeat that our opinion is that the proviso does not apply to the real estate voters of the city of Providence, or in any way abridge their right to vote for city councilmen in said city.

THOMAS DURFEE, CHARLES MATTESON, JOHN H. STINESS, P.E. TILLINGHAST, G.M. CARPENTER, JUN.