William A. Pirce was by the General Assembly of Rhode Island declared to have been, November 4, 1884, elected a representative in the Forty-ninth Congress. The House of Representatives, January 25, 1887, resolved that he was not elected, that the seat was vacant, and that neither he nor any other person received a majority of the legal votes cast at the election of November 4, 1884. Held, that it was a case in which "vacancies happen in the representation," under article I. section 2, of the Constitution of the United States. Held, further, that the governor had power to issue a writ of election to fill the vacancy. Pub. Stat. R.I. cap. 11, § 6, applies only when the count of ballots in the General Assembly shows a failure to elect. In Pirce's case the General Assembly declared him elected, and therefore could not order a new election under § 6.
OPINION OF THE COURT.
To His Excellency George Peabody Wetmore, Governor of the State of Rhode Island and Providence Plantations:
We have received from your Excellency a communication requesting our opinion on a question stated therein. The statement is that William A. Pirce was by the General Assembly declared to have been elected November 4, 1884, a representative in the Forty-ninth Congress of the United States from the Second Congressional District of this State, and that January 25, 1887, the national House of Representatives adopted a resolution declaring that said William A. Pirce was not elected, and that the seat was vacant, the reason being that neither said Pirce nor any other person received a majority of the legal votes cast at said election of November 4, 1884. Your question is, "whether said resolution creates a vacancy within the meaning of article I. section 2, of the Constitution of the United States, and so imposes on the governor the duty of issuing a writ of election, as required by that section, or whether it is a case in which the General Assembly should order a new election under the provisions of Pub. Stat. R.I. cap. 11, § 6.
We do not think the statement shows a case for the action of the General Assembly under chapter 11, section 6; for in our opinion section 6 has reference to the preceding section, and is intended to apply only when the count in the General Assembly, provided for in the preceding section, shows a failure to elect. After such a count, according to your statement, the General Assembly declared that William A. Pirce was elected, and therefore it could not order a new election under section 6.
We pass to your alternative inquiry. The language, article I. section 2, of the Constitution of the United States referred to, is as follows, to wit: —
"When vacancies happen in the representation from any state, the executive authority therefor shall issue writs of election to fill such vacancies."
There can be no doubt that a vacancy exists; the only question is whether a vacancy which exists by reason of a failure to elect is, within the meaning of the provision above quoted, a vacancy which has happened in the representation, since the word happen may be thought to import vacancy occurring in the course of the representation after it has been filled. We think it is, even under such a construction, for we suppose we may assume that William A. Pirce received a certificate of election, and that on the faith of it he was admitted to a seat in Congress, which he continued to occupy, as representative de facto at least, until the seat was declared vacant by the resolution aforesaid. We think, therefore, that your Excellency has power, under the provision above quoted, to issue a writ of election to fill the vacancy, and, having the power, we think it is for your Excellency to decide whether, considering how soon the Forty-ninth Congress will terminate, it is your duty to exercise it.
THOMAS DURFEE, CHARLES MATTESON, JOHN H. STINESS, P.E. TILLINGHAST, GEORGE A. WILBUR.