Opinion
October 31 as of October 30, 1961.
PRESENT: Condon, C.J., Roberts, Paolino and Powers, JJ.
1. SUPREME COURT. Advisory Opinions. Effect.
An advisory opinion is in no sense a decision of supreme court. In performing this constitutional function the judges do not speak ex cathedra from the chair of judgment, but only as consultors somewhat like the jurisconsults under the Roman law. It is not an exercise of judicial power. R.I. constitution, art. XII, § 2, of amendments.
2. ELECTIONS. Illegal Votes. Failure to File Protest.
Where, because of error in preparing voting machines, it was possible for a voter to vote for 3 candidates in primary election to select candidates for school committee whereas he was legally entitled to vote for only 2, and 186 illegal votes were recorded which cast doubt on nomination of 1 of 4 candidates whose plurality over candidate with next highest vote was 76,
Held, that failure of any person qualified to protest election avoided possibility of a successful attack upon the validity of nominations of 4 persons certified as candidates on the basis of having received highest number of votes. G.L. 1956, §§ 17-15-34; 17-19-1 et seq.
OPINION TO GOVERNOR in answer to query relative to validity of nominations of candidates for school committee ill city of Pawtucket.
October 30, 1961
To His Excellency, John A. Notte, Jr. Governor of the State of Rhode Island and Providence Plantations
Your Excellency's request for our opinion on certain questions of law pertaining to the validity of the primary election for nomination of members of the school committee of the city of Pawtucket held on October 3, 1961 has been duly considered and we submit the following in response thereto.
It appears from your letter requesting our opinion that the following facts regarding the election are undisputed. Because of an oversight or misunderstanding by the authorities charged with preparing the voting machines it was possible for a voter to vote for three candidates whereas he was legally entitled to vote for no more than two. As a result of such error it was definitely ascertained after the election that 186 illegal votes were recorded in several voting districts of the city. In other words that number of voters had voted for three candidates. Your letter does not state that any fraud or other deliberate wrongdoing designed and intended to corrupt the election was involved and for the purpose of this opinion it is assumed that there was none.
There were seven candidates for four nominations and the four candidates, namely, Savoie, McCarthy, Noble and McCabe, who received the highest number of votes were certified as the nominees. The first three above named received the largest number of votes even if the 186 illegal votes were deducted from their totals. Candidate McCabe, however, would not qualify if the 186 illegal votes were deducted from her total since she received only 76 more than Goodwin, the next highest candidate.
In these circumstances your first question is:
"A) Are Dr. Savoie, Mr. McCarthy, Mr. Noble, and Mrs. McCabe the lawfully nominated candidates for the office of school committee member so as to authorize the Secretary of State and the State Board of Elections to proceed in accordance with the provisions of Chapter 17-19, and so as to authorize the election for school committee to be held on the basis of Dr. Savoie, Mr. McCarthy, Mr. Noble and Mrs. McCabe as candidates?"
In view of the answer which we shall give to this question the other questions propounded in your letter will not arise and therefore they need not be stated here.
After the election the above facts became matters of general knowledge. Notwithstanding such knowledge none of the candidates demanded a recount or protested the validity of the election in accordance with the provisions of G.L. 1956, § 17-15-34. Consequently there was no ground laid for litigating the validity of the election in court. Hence Your Excellency's request poses a serious question whether the judges of this court should now academically pass on such validity by rendering a purely advisory opinion. With some misgivings we have decided to do so.
Perhaps it would be well to preface our opinion by reiterating what has been so often stated in the past, namely, that such an opinion is in no sense a decision of the supreme court. In performing this constitutional function the judges do not speak ex cathedra, from the chair of judgment, but only as consultors somewhat like the jurisconsults under the Roman law. However sound the opinion may be, it carries no mandate. For this reason it is not an exercise of our judicial power.
Very few American states have required the judges of their court of last resort to perform this unique function. Indeed it has been considered by some authorities as incompatible with the judicial function. Such was the opinion of the first justices of the supreme court of the United States. Speaking through Chief Justice Jay, they expressly refused President Washington's request for their opinion on a question of international law arising out of the wars of the French Revolution. See 1 Warren, The Supreme Court in United States History, pp. 110-111. That court has ever since adhered to this view. Chicago Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 113.
However, since article XII of amendments, sec. 2, to our state constitution expressly imposes the duty on the judges of this court to "give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly," we are obliged to respond even though our opinion may carry no mandate. In the present instance that will be of no consequence in view of the conclusion to which we have come on the question propounded.
It is our view that in the special circumstances here no issue can now be raised in a litigated case as to the validity of the election because of the 186 illegal votes. Had a timely protest been filed under the statute by candidate Goodwin the whole aspect of the situation would have been different. Since the 186 illegal votes would have cast a doubt on candidate McCabe's majority over candidate Goodwin, the validity of the entire election would be in such doubt as to require a new election for all candidates. This would be so because if a new election were ordered only for the fourth nomination it would be impossible to determine who would be ineligible to vote at such an election, there being no way of ascertaining from the voting lists which voters had voted for two candidates other than McCabe and Goodwin at the primary election. Consequently an entirely new election would be an indispensable necessity.
The inaction of candidate Goodwin to protest the election or of any other person qualified to do so has thus avoided the possibility of a successful attack upon the validity of the nominations of Savoie, McCarthy, Noble and McCabe. We therefore answer Your Excellency's question in the affirmative.
Mr. Justice Frost did not participate in this opinion.
FRANCIS B. CONDON THOMAS H. ROBERTS THOMAS J. PAOLINO WILLIAM E. POWERS