OPINION OF THE COURT.
April 13, 1881.
To the Honorable the Senate of the State of Rhode Island and Providence Plantations:
We have received from your honorable body a resolution requesting our written opinion on the two following questions, to wit:
"Has a person, having the qualifications described in section 1, article 2, of the Constitution, the right to have his vote received by the moderator and counted if his name be not found on the *Page 732 list of voters, as prescribed by section 1, chapter 9, of the General Statutes?
"If the court shall answer the question in the affirmative, what evidence shall the moderator require of the right of such person to vote?"
Section 1 of chapter 9 is unambiguous, and clearly directs the moderator to reject the votes of all persons claiming to vote whose names are not on the list, subject to certain plain exceptions in respect of ward and district lists. No one can doubt the meaning. We suppose, therefore, that the object of the first question is to ascertain whether, in our opinion, the direction to reject the unlisted votes is constitutional. We have carefully considered the question in that light, and are clearly of opinion that the direction is constitutional, being fully authorized by section 6 of article 2 of the Constitution, which gives the General Assembly full power "to prescribe the manner of conducting the elections," and "the nature of the evidence to be required in case of a dispute as to the right of any person to vote, and generally to enact all laws necessary to carry this article" (i.e. the article in relation to the qualifications of voters and their rights to vote) "into effect, and to prevent abuse, corruption, and fraud in voting." In pursuance of the power so given various laws have been enacted, and among them the laws under which the lists of voters, mentioned in section 1 of chapter 9, are prepared and authenticated by the boards of canvassers of the several towns. In making up these lists, the canvassers are in our opinion required to proceed in a manner which is well calculated to insure the listing of all qualified voters, and which affords to every person claiming a right to vote a fair opportunity to establish his right, if he can, and have his name duly enrolled. It follows that, in the absence of fraud which may be practiced, or of accident which may happen under the wisest laws, no name of any qualified voter is likely to be omitted from the proper list, except through his own negligence or in consequence of some error of adjudication on the part of the canvassers. Now, if the name be omitted through the negligence of the voter, there is no good reason why he should not suffer the loss of his vote for it. If it be omitted in consequence of an erroneous adjudication by the canvassers, then, though the *Page 733 voter may have some reason to complain of the want of any ulterior remedy, yet it is perfectly evident that a moderator, while holding an election, is not a fit tribunal to afford him such a remedy. And even if the name be accidentally omitted, still it is manifest that it cannot be wisely left to a moderator to supply the omission on election day; for he cannot properly supply it without an investigation, and he cannot investigate without a hearing, nor, if several accidental omissions be alleged, without several hearings, probably involving controversies, which would inevitably endanger the orderly conduct of the election, and which might altogether defeat it.
We therefore answer the first question in the negative. The first question being answered in the negative, the second requires no answer.
THOMAS DURFEE, W.S. BURGES, ELISHA R. POTTER, CHARLES MATTESON, JOHN H. STINESS.