I am unable to see that the court has jurisdiction of a petition like this. I do not doubt the authority of the court to issue a mandamus which involves only a plain ministerial duty, for, in such case, the court exercises an executive rather than a judicial function. But here the controlling question is whether, if an election is called as prayed, the persons chosen at such election will be legally elected; for, unless this is so, clearly we have no right to command the calling of an election. The gist of the matter then is the legality of the election and this requires the exercise of a purely judicial function, namely, the construction *Page 267 of chapters 710 and 923 of the Public Statutes. While this duty, in ordinary cases, is one which pertains exclusively to the court, a difficulty in this case, to my mind, arises from the fact that Art. IV, § 6, of the Constitution says: "Each house shall be the judge of the elections and qualifications of its members." In People ex relat. Hatsel v. Hall, 80 N.Y. 117, Folger, J., says: "It is conceded by the text writers, that each of those houses has the sole power to judge thereof, exclusive of every other tribunal:" citing numerous authorities, and the opinion holds that a gift of judicial power to one coordinate body, should be construed as reserving the particular power thus bestowed from the general conferment of judicial power, by the same instrument, upon another coordinate body. The judicial power thus reserved is general in its terms and embraces questions of law as well as of fact. Peabody v. School Committee ofBoston, 115 Mass. 383; People ex rel. Sherwood v. Bd.Canvassers, 129 N.Y. 360, 375.
If this court decides that a member of the legislature may be legally elected, under our construction of the law, at the meeting we are asked to order, the house to which he is so elected may decide differently and our order for an election will be rendered futile. Of course the court, merely on account of such difference should not be deterred from performing a plain duty; for even the two houses of the assembly may differ between themselves as to the validity of the same election; but the possibility of such difference, with the ultimate and controlling power given to another body, seems to me to afford an appropriate test of the question of the jurisdiction of this court. The form of the proceeding is within the jurisdiction of the court; but we must look to the substance of the proceeding rather than to the form, and the substantial thing to be decided is the legality of the election. It is urged, however, that we do not decide the legality of the election, but simply declare the meaning of the law and require a ministerial duty to be performed accordingly. This seems to me to beg the whole question. It amounts to our holding that we have a jurisdiction because we take it, or to administering the *Page 268 law as plain because we say it is plain; when, in fact, we have gone outside of the terms of the law and put a judicial construction upon it, which must of necessity declare in advance the legality of the election; while the other tribunal, to whom the constitution has exclusively confided this class of cases, may decide exactly the reverse. We are not asked to order a duty which is apparent upon an inspection of the law, but a duty which can only be arrived at by a judicial interpretation of the law. When the law says a thing shall be done in a certain way, the court may say to the inferior officer: "Do it." It is a straining of terms to say that this is an exercise of judicial functions. And this was all that was done in People ex relat. Fuller v.Hilliard, 29 Ill. 413, and State v. Elder, ex relat.Benton, 31 Neb. 169, cited by the petitioner, where a certificate was ordered to be given in one case and returns to be opened in the other, in order that the disputed question might be put before the house. The cases involved no prejudgment of the controversies. But here we must prejudge the validity of the election in order to be warranted in commanding it, and this, too, when we cannot enforce that judgment, nor make it binding upon anybody but the persons to whom our command is issued.
The Supreme Court of Pennsylvania In re Contested Electionof McNeill, 111 Pa. St. 235, refused to entertain a writ ofcertiorari to review the conclusion of the Court of Common Pleas in a contested election for senator, remarking: "Were we to assume jurisdiction to review this advisory action of the Common Pleas, whether we agreed or disagreed with it, our conclusion would be of no binding obligation on the house." So in Peabody v. School Committee of Boston, supra, Gray, C.J., in speaking of a similar clause of the constitution of Massachusetts, said: "The only form in which the justices of this court can properly express any opinion upon that subject is under that clause of the Constitution which authorizes each branch of the legislature, as well as the governor and council, to require it upon important questions of law and upon solemn occasions." In Mauran v.Smith, 8 R.I. 192, this court refused to issue a mandamus *Page 269 to the Governor of the State, and Durfee, J., said: "One reason which has been suggested for refusing the writ, is, that if granted, it would tend to provoke a conflict between the judicial and executive branches of the Government, — a conflict in which the judiciary would prove the weaker party. Of course, in a case where the jurisdiction is clear, such a consideration could have no weight; but where the jurisdiction is problematical, the consideration affords a presumption which it would be unwise to disregard. `For,' as Blackstone has remarked, `all jurisdiction implies superiority of power; authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it.' 1 Shars. Bl. Com. 242." It is no answer to this reasoning to say that the court can enforce itsmandamus, when the fundamental question on which thatmandamus must depend is the legality of the election.
In the same line was Weeden v. Town Council of Richmond,9 R.I. 128, where the court refused to express an opinion, under the assent of both sides, upon the ground that it had no jurisdiction to enforce it. The mandamus of course could have been enforced; but the decision of the real question involved having been committed to the town council the court would have no right to enforce it and consequently lacked jurisdiction of the whole matter. The case in this respect seems to me to be identical in principle with the case at bar. The most urgent and plausible reason in favor of the jurisdiction of the court is upon the consideration of consequences. It is urged that town councils by refusing to call a meeting, through ignorance or fraud, may deprive electors of their right to elect. This may be so. But it is a significant fact that in the numerous cases, with which the reports of all the States abound, in regard to calling elections, not one can be found where a court has interfered bymandamus to order an election for senators or representatives. This shows one of two things; either this class of cases has not been considered to be within the jurisdiction of the court; or else official fidelity to an express law has thus far been adequate *Page 270 to secure the rights of the people. If it be the former the inference is almost conclusive against jurisdiction; if it be the latter, the evil consequences, which have been conjectured, fade away and we may safely say that the machinery of the law, which has gone on without a break down to the quadri-centennial of the landing of Columbus, does not require the aid of the court by extraordinary remedy, and it may well be trusted for the future. The safeguard of the public is to be found in the general loyalty and honesty of its own officials, and, in exceptional cases, in the penalties provided for a breach of duty.
As said in People ex relat. Demarest v. Fairchild, 67 N.Y. 334, a petition for mandamus against the attorney general: "The attorney general may have erred in judgment, and for this there is no remedy. If he had acted corruptly or from unworthy motives and the legal rights of the relator have been prejudiced this is not an appropriate remedy." And in State of Missouri exrelat. Ensworth v. Albin, 44 Mo. 346: "There is force in the observation of the petitioner's counsel that if the registration officers refuse to perform their duty injustice may be done, and a party may be deprived of what he is fairly entitled to. But that would not justify a court in giving validity to a palpably illegal act, though the illegality occurred in consequence of the negligence, wilful default, or even corruption, of officers whose duty it was to perform a given function or execute a trust."
In the Opinion of the Judges, 10 Gray, 613, it is said: "If it shall be asked what shall be done if one of these apportionments and returns shall be discovered to be erroneous, one answer is that the Constitution has provided no power competent to inquire into and correct any such error. . . . . All public officers who are charged with the performance of public duties, and who may be guilty of fraudulent, wilful and corrupt conduct in the discharge of them, are liable to prosecution and punishment therefor by impeachment or indictment; but even punishment for their misdeeds may not necessarily correct them, though it may afford an additional security to the public against their perpetration." *Page 271
It may also be said that unless the court sets the machinery in motion the question cannot be brought before the house for decision. But even this, to my mind, does not show that the court has jurisdiction. It is not the province of the court to compel the making of a moot case for another tribunal; nor to supply, in an exigency, a remedy which the law has not provided. The law may be so framed as to enable the court to enforce its plain terms; but the court cannot take this power to itself, by going outside of the constitutional limit to put a construction upon the law and then administering it as if it needed no construction. Hence the court was correct in its original rescript that we had no jurisdiction and that the remedy must be provided by law for the future, this instance being casus omissus.
These considerations result in the following propositions. The grant of judicial powers over elections, in the Constitution, to the two houses of the assembly is full, embracing law and fact, and is exclusive of all other jurisdiction. The process of the court may be invoked in execution of those requirements which are apparent on the face of the law; but not of such as can only be ascertained by a resort to interpretation of the law, because this is strictly a judicial power which is conferred upon the house and thus reserved from the jurisdiction of the court. When the main question to be determined is the legality of an election, to which the issuing of process by the court is simply incidental, the court invades the jurisdiction conferred upon another body in prejudging the opinion and this is made apparent by the fact that the court has no authority to enforce its real judgment, the ultimate power being given to the other body. Jurisdiction to try and determine and power to enforce go together. Honesty of purpose and penalties for default, instead of the process of the court, are the sufficient trust of the public, as shown by the fact that the court has never been called upon to act in such a case before.
For these reasons I am of the opinion that the court has no jurisdiction to pass upon the substantial question which is raised in this case. *Page 272
The case was then, as to the other questions involved, heard by the Court on the demurrer.
Providence, May 12, 1893.