In Re Advisory Opinion to the Governor

LEDERBERG, Justice,

dissenting.

I respectfully disagree with the majority’s conclusion that section 5 of article 9 of the Rhode Island Constitution authorizes a Governor to fill by appointment a vacancy in the office of Lieutenant Governor. Rather, section 5 of article 9 grants a limited and defined power to a governor to fill only those vacancies “not otherwise provided for by this Constitution or by law.” The section does not endow a governor with authority to fill a vacancy in the constitutional office of Lieutenant Governor because the Constitution provides that the people shall elect a Lieutenant Governor. It is inconceivable that the *293framers intended that a vacancy in that particular constitutional office be filled “by appointment” by the Governor for the very reason that the majority recognizes, namely, “other provisions of the constitution provide for the performance of [the] junctions ” of that office during any such vacancy. Hence, such a vacancy is “otherwise provided for.”

The constitution assigns two duties to the Lieutenant Governor: first, to serve as the presiding officer of the Senate and the Grand Committee, R.I. Const, art. 8, sec. 2, and second, to accede to the governorship in the event of a vacancy in that office, R.I. Const, art. 9, sec. 9. The constitution specifically provides that, in the absence of the Lieutenant Governor, “the senate shall elect one of its own members to preside.” Article 8, section 3. In fact, even the Lieutenant Governor’s duty to preside over the Senate and the Grand Committee will expire on January 14, 2003, at which time “the senate shall elect its president, who shall preside in the senate and in grand committee.” Article 8, section 2. In respect to the unlikely event that vacancies arise in the offices of both Governor and Lieutenant Governor, the Constitution provides that the Speaker of the House of Representatives would accede to the governorship. R.I. Const, art. 9, sec. 10. Thus, by expressly providing for the assumption of all duties assigned to the Lieutenant Governor, the Constitution has thereby plainly “provided for” the eventuality of a vacancy in that office. Consequently, the Governor’s authority under article 9, section 5, to fill vacancies that are “not otherwise provided for” clearly does not apply to a vacancy in the office of Lieutenant Governor.

My colleagues aptly assert that “[a] page of history is worth a volume of logic.” Happily, in this case, we do not require volumes of logic to compel the conclusion that the office is to remain vacant in the event of absence, inability, or vacancy. And, in fact, there are volumes of history to support this conclusion.

In each instance that the office of Lieutenant Governor has become vacant since the adoption of the Constitution of 1843, the position has remained vacant until the people elected a Lieutenant Governor at the following election. “Our task in construing constitutions is to give effect to the intent of the framers.” City of Pawtucket v. Sundlun, 662 A.2d 40, 45 (R.I.1995). In so doing, it is appropriate for this Court to consult extrinsic sources and to “look to the history of the times and examine the state of affairs as they existed when the [provisions were] framed and adopted.” Id. In this case, the historical record reveals seven occasions when the office of Lieutenant Governor became vacant. Rhode Island Manual at 205-13 (1991-1994).

In July 1853, just eleven years after the Constitution was adopted, the Lieutenant Governor acceded when the Governor resigned, and the office of lieutenant governor remained vacant for ten months (out of a twelve-month term) until May 1855. In September 1862, the Lieutenant Governor resigned after his election to the United States Senate, and the office of Lieutenant Governor remained unoccupied for eight months until May 1863. In February 1928, the Lieutenant Governor acceded upon the death of the Governor, and the office of Lieutenant Governor became vacant for eleven months (of a two-year term) until January 1929. From April 1944 to January 1945, a period of nine months, the Lieutenant Governor’s office was unoccupied after the Lieutenant Governor resigned to accept a judicial appointment. From October 1945 to January 1947, the Lieutenant Governor’s office was vacant for fifteen months of a two-year term, when the Governor resigned and the Lieutenant Governor acceded. In December 1950, the Governor again resigned, and the Lieutenant Governor acceded to his office, creating a vacancy in the Lieutenant Governor’s office until January 1951. Finally, in April 1956, the Lieutenant Governor resigned upon his appointment to Superior Court, and the office of lieutenant governor remained vacant for nine months until January 1957. There is no evidence in the historical record that the Governor, or for that matter the General Assembly, ever filled or attempted to fill any of these vacancies by appointing a new Lieutenant Governor.

The majority refers in footnote 1 swpra to “numerous instances under the Constitution of 1843 when vacancies in the office of Lieutenant Governor either were filled by the *294Grand Committee or were left vacant” and notes that the “historical outline is interesting but scarcely controlling [because w]e must construe the current provisions of the Constitution of 1986.” As the historical outline clearly reveals, however, vacancies in the office of Lieutenant Governor were never filled after the 1843 Constitution was adopted.3 Moreover, the provision of the 1986 Constitution we are asked to construe, namely article 9, section 5, is identical to article 7, section 5, of the 1843 Constitution. Ergo, history in this case is not merely “interesting” but is compelling and conclusive as well.

Changes in the constitutional framework of government should not be effectuated without the approval of the people: “ ‘the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.’” R.I. Const, art. 1, sec. 1 (quoting the Father of his Country). The comprehensive review of our constitution in 1986 presented an opportunity for the framers to provide for filling this vacancy by appointment had they intended that the office should not remain vacant. For example, article 4, section 4, in contrast, does direct that vacancies in the constitutional offices of Secretary of State, General Treasurer, and Attorney General be filled by the General Assembly. That section specifically grants power to the Governor to fill vacancies in these three offices in the event the Legislature is not in session, but such appointees serve only “until a successor elected by the general- assembly is qualified to act.”

The majority’s conclusion misapplies the constitutional history of this state and fails to defer to a century and a half of this court’s jurisprudence on the respective powers of the legislative and executive departments. “[T]he power of the General Assembly in this state, as in other states, has been plenary and unlimited, save as this authority may have been limited by the Constitution of the United States and the Constitution of the State of Rhode Island.” Kass v. Retirement Board of the Employees’ Retirement System, 567 A.2d 358, 360 (R.I.1989). The framers “stoutly * * * refused to vest the executive department with full executive powers.” Gorham v. Robinson, 57 R.I. 1, 23, 186 A. 832, 844 (1936). Fourteen years after the adoption of the 1842 Constitution, this Court recognized the extremely limited power of the executive, stating that “[t]he executive power had been nominal, merely, under the charter; and the constitution extends it very little.” G & D Taylor & Co. v. Place, 4 R.I. 324, 349-50 (1856). And, only a year ago, this court concluded that “the executive department — chief executive has today essentially the same limited powers first given in 1842. All that have been added in the intervening one hundred and fifty-three years since that time, are the Governor’s limited pardoning and veto powers.” Narragansett Indian Tribe v. State, 667 A.2d 280, 281 (R.I.1995).

In spite of the ample history of the office of Lieutenant Governor remaining vacant and in disdain of our unwavering precedents that have construed the Governor’s power as “nominal” and “limited,” my colleagues read the catchall provision of article 9, section 5, as providing the remarkable enumerated power to appoint a constitutional officer. The majority does this notwithstanding our previous interpretation of this section as “only a power given to the executive for general convenience in case some other custodian of it has not been provided, and it is only for a temporary purpose — until the normal elective power shall act.” (Emphasis *295added.) In re Filling of Vacancies by the Governor (Railroad Comm’r), 28 R.I. 602, 606, 67 A. 802, 803 (1907).

It is my opinion that one cannot extract from article 9, section 5, the grant of the extraordinary executive power to appoint the Lieutenant Governor, a constitutional general officer, who, by the very mandate of the Constitution, must be elected by the citizens of this state. “[S]uch a construction would go far beyond any meaning which can be legitimately deduced from the text and would be an attempt to stretch its provisions to include circumstances not contemplated by those who framed it.” 28 R.I. at 606, 67 A. at 804.

. The record reveals one instance in which a vacancy in the position of Lieutenant Govemor-elect was filled by the General Assembly. On December 16, 1901, governor-elect William Gregory died, and Charles Kimball, who at the time was both incumbent Lieutenant Governor and Lieutenant Governor-elect, became Governor. Rhode Island Manual at 206-07, 212-13 (1991-1994). On February 18, 1902, the Grand Committee elected George Shepley to the position of Lieutenant Governor. It appears that the authority for this election was section 3 of amendment XI to the Constitution of 1843, which is substantially the same as article 4, section 3, of the 1986 Constitution, pertaining to vacancies among general officers-e/ecf, and not any general authority to fill vacancies arising during the term of office of Lieutenant Governor. In any event, history provides no precedent of a Governor’s filling a vacancy in the lieutenant governorship, which is the issue before us.