The question of jurisdiction lies at the threshold of this proceeding and requires careful consideration.
The Constitution secures to the electors of the several towns the right to choose annually their senators and representatives in the General Assembly. When the attempt to elect at the annual election meeting is unsuccessful the Constitution, where its provisions are applicable, or the statutes, where it is silent, provide for adjournments of the election within certain limits.
It is alleged that the statute relating to South Kingstown provides for successive elections until a result is reached. The town council refuse to call a new election, and the first ground taken in opposition to this application is that if it is their duty to call such election this court has no jurisdiction to ascertain and enforce that duty. This contention is based upon the fact that each house of the General Assembly is the judge of the elections and qualifications of its members; and it is argued that as the legality or illegality of the holding of the election itself may be a controlling issue in deciding upon the status of a person claiming to be elected and so become an issue which the house in which he claims membership can alone decide, this court is precluded from any examination or decision of that question.
It seems to us that this reasoning is fallacious and involves assumptions which are subversive of the established distinctions between the several branches of the government.
In the first place it assumes that the decision of either house in the General Assembly, acting under this power, has the effect of declaring the law. This is clearly not so, for the senate may seat a senator and the house of representatives may refuse to seat a member-elect to that house, both coming with similar credentials from the same election; and the senate may specify as the ground of their action that the election was lawfully held and the house may justify their action on the ground that the election was not lawfully held. *Page 262 Under the Constitution the action of each house with respect to the person claiming to be elected, is valid and final; but none of the steps by which that action was reached and none of the reasons assigned by either house, though they were spread by resolution upon its records, would have any force as declaring the law beyond the case then decided. Neither house of the legislature by itself can either make or authoritatively interpret the law as a rule for others. The making of the law under the Constitution requires the concurrent vote of both houses and the declaration or authoritative interpretation of the law so as to form a precedent for subsequent cases, is for the courts. "To declare what the law is or has been is a judicial power; to declare what it shall be is legislative." Cooley on Constit. Limit. 113. The late Chief Justice Ames, in Taylor v.Place, 4 R.I. 324, says, p. 361: "Neither the convention which framed the constitution, nor its members, nor the members of the general assembly, nor even the general assembly itself, can,authoritatively expound the Constitution, but only thecourts." Maxwell, J., in State ex relat. Benton v. Elder,31 Neb. 169, says: "But it is said that the legislature is a coordinate branch of the government and that it is entitled to construe the Constitution and statutes for itself, and therefore is not governed by the construction placed upon it by the Supreme Court. That it is a very important coordinate branch of the government is true, and the Supreme Court has never, except when its action was invoked in some of the modes pointed out by the law, sought to construe statutes or constitutional provisions for the legislature. It is the province of the legislature, however, to pass laws and of the courts to construe the Constitution and the laws. . . . . It is the duty of the court to carefully investigate every case brought before it, and after due consideration place what it believes to be a correct construction upon the language of any of the provisions of the Constitution or of the statutes; and such construction binds every department of the government, including the legislature, and every person within the State. The construction given by the Supreme Court becomes the standard *Page 263 to be applied in all cases." And again, p. 717: "The legislature is a lawful body elected and organized in pursuance of the Constitution and the laws for a lawful purpose; and while within the limits and restrictions of the Constitution it may pass any measure it may deem proper, yet morally it is bound by the same considerations of fairness and justice which control the courts, and it is its duty to dispose of election contests in this manner."
It is doubtless in the power of either house of a future legislature, in its action upon election cases, to disregard equally the statutes and the decisions of the courts; but we see no reason in the fact that this power exists why the legislature should refrain from making laws or the courts from interpreting them. Neither of the coordinate branches of the government can anticipate error in the other or assume that any other will act unlawfully; particularly when the Constitution has afforded to the executive and legislative departments means of ascertaining the law when it is doubted and has not been declared by previous judicial decisions. Constitution of Rhode Island, Art. X, § 3.1
Again, it does not follow from the fact that one tribunal is the ultimate judge of a question when it arises in reference to a matter proper for its decision, that another tribunal may not entertain the same question independently when called upon to decide its own action or to compel the action of parties lawfully in its jurisdiction; and the recurrence of the same question in both fora does not exclude from the jurisdiction of either tribunal a case normally within it.
Such cases are provided for and anticipated in the Constitution and in the statutes. For example: The Constitution provides, Art. XI, § 3, as follows: "The governor and all other executive and judicial officers shall be liable to impeachment; but judgment in such cases shall not extend further than to removal from office. The person convicted *Page 264 shall nevertheless be liable to indictment and punishment according to law."
In such proceedings, whether in the assembly or in the court, questions of construction of the law of the case must arise. The senate acting as a court to try the impeachment may construe the law and act in that proceeding upon such construction. The court trying the indictment may construe the same law and its construction may determine the result of the trial. Each tribunal acts independently of the other in its own sphere although in arriving at their several conclusions both may traverse in part the same ground.
The statutes also provide, Pub. Stat. R.I. cap. 238, §§ 4, 5, that for officiating as moderator, warden or clerk, or for allowing his name to be used as a candidate for any legislative office at an illegal election, a person shall be punished by fine and imprisonment, and such cases shall be tried by the Supreme Court:
In such a case the person elected may be rejected by the house and so the legislative body may disapprove the election, and the court in trying the officer or candidate may rule the election legal. Shall the court refuse to acquit a person charged with crime because one house of the General Assembly has construed the law differently from its meaning as ascertained by the court?
If we allow, therefore, to the senate in impeachment cases and to either house in election cases the fullest judicial power which the Constitution can be supposed to give them, these powers cannot be interpreted to interfere with the independent power of the court in cases properly before it, or to bind its action as precedents; and still less can such powers in the legislature be held to limit the powers or duties of the court when its action must precede the consideration of the question elsewhere.
The holding of an election which the law requires is a necessary prerequisite to bringing before the house the question of the seating of the claimant of the office. To refuse to order the election is to decide the question in advance and preclude the house from passing upon it at all. To order the *Page 265 election is one step towards bringing the final question of the seating of the claimant before the ultimate tribunal which has the power to decide it. If the people who have the right to elect are not secured in it by the action of the court they will have lost it irretrievably.
The cases, People ex relat. Fuller v. Hilliard, 29 Ill. 413, and State ex relat. Benton v. Elder, quoted above, are very persuasive upon this point.
Passing then the objection that the construction of the law may arise hereafter in another tribunal, the question is whether the case alleged is a proper one for the issue of a writ ofmandamus.
One office of mandamus is to enforce obedience to statute law. In general it lies to compel all officers to perform ministerial duties as well as to compel subordinate courts to perform judicial duties; but not to compel the exercise of discretion in any particular way. It is not contended that the duty of the town council in this matter is other than ministerial. Mandamus is peculiarly the proper remedy when other specific remedies are wanting. The remedy which a legislature can provide is to make a law applicable to the case. When the law is made it is for the court to enforce it or to punish for disobedience of it. In either function it must construe the statute, i.e. declare what it means. In the present case if the law already made imposes a present duty no further legislation would make it more imperative. Any legislative act designed as a remedy must impose ministerial duties upon individuals. The court must again be resorted to compel such individuals to perform those duties. So that in the last analysis this remedy by mandamus is the only specific and efficient one, and if it is not afforded there are no other means which can give to the electors the opportunity to exercise such rights as the law gives them.
If the law has not provided for this case then the sole remedy is with the legislature, but if the legislature has already expressed its will in the form of law the sole specific remedy is in the court. It seems incumbent, therefore, upon the court to examine the statute and see if it gives the right to *Page 266 the electors which is claimed — not the right to have any particular person seated as a member of the legislature but the right by lawful methods to express their choice of candidates for that office.
It was suggested at the hearing that if the right were given by the statute in words which could not be misunderstood,mandamus would lie; but that where the statute is not so plain as to exclude all debate as to its meaning, the court ought to refrain from construing it. We think this argument is self destructive. The reading of any sentence in a living language requires some exercise of judgment and a choice of interpretations. It is hardly possible to write an English sentence in which words will not occur which have different meanings; and from these meanings the reader must select the one consistent with the subject and the context.
If the court find a meaning in the statute, that, to them and as controlling their action, is the meaning of the statute and the command of the law until it is repealed or amended. If the statute which is to be the rule of action of ministerial officers in important public duties presents difficulties of interpretation it is all the more desirable that its meaning should be ascertained and more plainly declared by the court.
These considerations lead us to reconsider the rescript which expressed the first impression of the court upon this branch of the case, and the petition will stand for argument upon the other questions involved.
1 As follows: "The judges of the supreme court shall, in all trials, instruct the jury in the law, They shall also give their written opinion upon any question of law whenever requested by the governor, or by either house of the general assembly."