(2) Does section 4 of the proposed act, colony tax and under its provisions each town wherein it provides for the election of the was to annually electmembers of said financial council by the tax-"three able knowing men in Each Town for paying voters only, deprive the registry vot-assessors or rate makers to stand for ye year ers of any right given them under article 2 of the Constitution, and is it inconsistent with the right given them "to vote in the election of all civil officers"?

*

on

Ensueing who Shall be Engaged as all other Town officers they or ye maj'r part of them in Each Town so Chosen to make and_proportion all Town Rates and likewise each Towns part of all colony Rates."

The power was extended expressly to the assessors to levy and apportion the town taxes by an act passed January 4, 1703, found at page 59, Id., which provided:

"And be it Further Enacted yt according for ye Gen'll Treasurer Geathering in ye Colto ye way & prescription ordered & Enacted ony rates, so ye Town Treasurer in each town in ye Colony is hereby required & Impowered to take ye Same measures & means for ye geathering all town rates annually assessed on any or each Town in ye Colony & ye town Treasurers

[1-3] Upon the first question: Does article 2 of the Constitution guarantee to the taxpaying voters of a town the right to assemble in financial town meeting? It provides that they "shall have a right to vote all questions in all legally organized town or ward meetings." The constitutional provision becomes effective to vest this right only in case there shall be a legally organized town meeting. It does not say that there shall be legally organized town meetings. It presupposes a legally organized town meet-of Each town have hereby full power & authoring; i. e., a town meeting held according to law. Financial town meetings have been held according to law in the history of the state not by virtue of any requirement or power under the Constitution or prior to the Constitution, but under statutory authority of the General Assembly. The General Assembly may, therefore, in the exercise of its proper power, prescribe that the financial town meeting shall no longer be authorized by law, and that taxes may be levied by some other method.

From very early times the course of legislation by the General Assembly has furnished a legislative construction that the towns derived all their powers from the legislative enactments passed from time to time. In City of Newport v. Horton, 22 R. I. 196, at page 202, 47 Atl. 312, at page 313 [50 L. R. A. 330], the court said:

"The charter of 1663 made a marked change in the conduct of public affairs. It concentrated power in the General Assembly. It gave that body authority to admit freemen; to elect and constitute such offices and officers as they should think requisite for the ordering and arranging the affairs of government; to make such laws as should seem to them meet for the government and ordering of the lands granted and the people inhabiting the same; to regu late the way and manner of all elections to offices; to prescribe and limit the numbers and bounds of cities and towns, as well as to do many other things, quite inconsistent with the powers reserved to the towns under the first charter. The action of the Assembly was in accordance with the increased power."

With relation to town and state revenue, the General Assembly early began to exercise its power. On May 6, 1792, an act was passed, entitled:

"An act for ye Enabling ye Generall Treasurer of this Her Maj'ties Colony for ye Col lecting or to order ye Collecting of all Such Colony Rates as Shall be hereafter from time to time Levied upon ye Inhabitants of sd Colony and Likewise for ye Enableing Each Town in ye Colony for ye annuall Choice of assessors for ye assessing all Rates that shall be assessed on Each Town in ye sd Colony." Pub. Laws, R. I. 1636-1705, page 54.

This act provided in general the machin

ity to use all Such Methods as ye Generall
warrants & geathering ye same.
Treasurer is impowered in Sending forth their

*

Apparently from a consideration of these statutory enactments the assessors not only exercised the power of fixing valuations which generally is the only power exercised by them under our present law, but they also were the proper body to fix and determine the rates of taxation. We find no power given to the freemen of the towns in this latter respect until the Digest of 1767 where at page 264 in "An Act, regulating the Proceeding of Town-Meetings in this Colony," it is provided as follows:

"Be it Enacted by the General Assembly, and by the Authority thereof it is Enacted, That every Moderator of any Town-Meeting in this Colony, when legally chosen, shall, after having heard the Freemen's Allegations respecting the Business of the Meeting, or any Thing relating thereto, and being called upon by Seven Freemen, to put any Part of the Town's Business to vote, shall forthwith cause such Vote to be put to the Meeting, upon the Penalty of being forthwith suspended from the Office of Moderator, and shall pay a Fine of Forty Shillings, to be recovered by the Town-Clerk, by an Action of Debt before any Two Justices, or Wardens of the Town, for the Use of such Town; and another Moderator shall be chosen in his Room.

"And be it further Enacted, That all Things relating to Town Affairs shall be decided by a Majority of the Voices of the Freemen then present.

"And be it further Enacted, That each and every Town in this Colony shall have, and they are fully empowered to make such Laws and Acts in their Town, for raising such Sums of Money as shall be by them thought needful for the defraying the incident Charges thereof, by a Tax on real or personal Estates, or both, and also to order a Poll Tax in any such Assessment, if they shall think proper.

"And be it further Enacted by the Authority aforesaid, That no Vote shall be passed in any Town-Meeting concerning Money in the TownTreasury, disposing of Land, or making a Rate, unless Mention be made, and Notice given thereof, in the Warrant given out for the warning of such Meeting; and that the Town-Clerk of each Town shall be the Person to grant such Warrant, unless in Cases where the Law otherwise directs; which Warrant shall be directed to the Town-Sergeant, or to either of the Con

24

97 ATLANTIC REPORTER

In the Digest of 1822 at page 255 is the fol- sion from the Digest of 1822 enacted under lowing:

"Sec. 6. And be it further enacted, that each and every town in this state shall have power and authority, when legally convened, to make such acts and laws in their town, for the raising such sums of money as shall by them be thought needful for the defraying the incidental charges thereof, or paying the town debts, by a tax on real and personal estate, or both; but no poll tax shall be levied or collected for any purpose whatever; and any town may include the said town's proportion of any state tax which has then been or may be assessed, in the assessment of such town tax, and pay the same out of the town treasury, provided the same shall be voted at a legal meeting of the freemen of such town."

In the preceding section, we find a definition of what was a "legal meeting of the freemen":

"Sec. 5. And be it further enacted, that seven freemen at least shall be necessary to constitute a legal town meeting, and all things relating to town affairs shall be decided by a majority of the votes of the freemen present; except that in the town of Providence, twenty-one freemen, at least, shall be necessary to constitute a meeting as aforesaid, and no special meeting shall be there called unless the application to the town-clerk therefor shall be signed by the number aforesaid."

It is apparent from a consideration of the provisions contained in the Digest of 1844 that the General Assembly, organized under the Constitution, considered that it was necessary to enact suitable legislation under that instrument to give the taxpayers the same right which the freemen exercised before its adoption. This was at least a legislative construction of the provisions of the Constitution under consideration and was carried out under article 4, section 10, which provides:

"The general assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this Constitution."

The Constitution by its own terms was to go into operation "on the first Tuesday of May, in the year one thousand eight hundred and forty-three."

At the January session, 1844, "An act establishing the Digest of Laws," etc. (page 59) was enacted. "An act declaring towns to be bodies corporate; and prescribing the manner of recovering debts due from towns," provides at page 297 of said Digest:

the charter is striking. With the exception of the necessary changes introduced therein due to the change in suffrage under the Constitution, the wording of the two provisions is practically identical.

"An act to regulate the assessing and collecting of taxes," passed at the January session, 1855, section 1, reads as follows (page 1159, Pub. Laws 1844-1857):

"The electors of any town qualified to vote upon a proposition to impose a tax, when legally convened, may vote to raise such sums of money as may be needful for defraying the necessary expenses of the town, support of schools, or paying the town debts or state taxes, by a tax But no poll tax No vote shall be on real and personal estate. passed for raising any money by taxation, unshall be levied by any town. less notice thereof shall have been given in the warrant for calling the meeting."

This provision appeared in still another form in the Revised Statutes of 1857, chapter 39, section 1, as follows:

"The electors of any town, qualified to vote upon a proposition to impose a tax, when legally assembled, may levy a tax for the purposes authorized by law, on the ratable property of the town, either in a sum certain, or in a sum not less than a certain sum, and not more than the valuation of such property to be made by a certain sum, or, in a certain percentage on the assessors of the town; and may order the time when such tax shall be assessed, and when the same shall be paid."

The last sentence in the provision of the act of 1855 was embodied in a separate section and we find it in Revised Statutes 1857, chapter 31, section 11:

"No vote shall be passed in any town meeting concerning the disposing of the town's land or and notice thereof given in the warrant issued making a tax, unless special mention be made, for the warning of such meeting; and the town clerk of each town shall grant such warrant, which warrant shall be directed to the town unless in cases where the law otherwise directs; sergeant or to either of the constables of the

town."

Chapter 39, section 1, Revised Statutes 1857, has been re-enacted in all of the revisions of the statutes since that time. See General Statutes 1872, chapter 40, section 1; Public Statutes 1882, chapter 43, section 1; General Laws 1896, chapter 46, section 1; General Laws 1909, chapter 58, section 1.

The General Assembly has from time to time by statutory enactment vested certain additional powers in the taxpaying voters in town meeting assembled.

"Sec. 8. The electors of each and every town
who are entitled to vote on any proposition to
impose a tax shall have power and authority,
"The electors of any town or city qualified
when legally convened, to make such acts and
laws in their towns for the raising such sums of to vote on a proposition to impose a tax, when
money only as shall be by them thought need- legally assembled, may vote to exempt, or may
ful for the defraying the necessary incidental authorize the town or city council of such town
charges and expenses thereof, or paying the or city, for a period not exceeding one year, to
town debts, by a tax on real or personal estate exempt from taxation for a period not exceed-
or both; but no poll tax shall be levied or col- ing ten years, such manufacturing property as
lected for any purpose whatever; and any town may hereafter be located in said town or city in
may include the said town's proportion of any consequence of such exemption, and the land
state tax which may be assessed, in the assess-on which such property is located." Gen. Laws
ment of such town tax, and pay the same out of
the town treasury, provided the same shall be
voted at a legal meeting of the said electors of
such town."

The similarity between this provision en

1909, chapter 56, section 4.

Each town at some regularly called meeting of the electors thereof who are entitled to vote upon any proposition to impose a tax is required to annually appropriate necessary

629, 72 Atl. 417, the question was raised | vote "on all questions in all legally organwhether the right given to registry voters by ized town or ward meetings." The purpose article 7, section 1, of the amendments "to of a proviso is never to enlarge a right previvote in the election of all civil officers and on ously given, but on the contrary to limit it. all questions in all legally organized town The effect of this proviso does not give the or ward meetings" was not infringed by an registry voter who has paid a tax on his act providing for the election of the school property valued at $134 any greater right committee by the city council of Woonsocket. than he possesses under the broad right to This court there held that this section of the vote "on all questions in all legally organized Constitution was not violated. The court town or ward meetings." It simply limits said, at page 631 of 28 R. I., page 418 of the right of the elector, who has merely reg72 Atl.: istered and who has not paid the tax, to vote on all questions except propositions to impose a tax or for the expenditure of money. If the provision without the proviso does not prohibit the Legislature from depriving the qualified elector of the right to vote in a town meeting held for financial purposes, it cannot be said that the proviso has such an effect. The proviso reads:

"Evidently the Constitution has not been understood to guarantee a right to every elector to vote for every civil officer. The course of legislation and practice of election, which we have noted, have been both a contemporaneous and continuous interpretation that the right to vote for all civil officers means 'officers as by the laws of this state are or may be required.' It recognizes the right of electors to vote for all officers, who are to be elected by the people, except as provided, but it does not require that electors shall vote for all officers whose election, under the law, is not to be made by the people."

And at page 632 of 28 R. I., page 418 of 72 Atl.:

If the right to assemble in financial town "It is argued that if this construction be given meeting is guaranteed by this proviso to the it will allow elections to be withdrawn from the qualified electors of a town, the same right people. The question is not what may be done, must be held to exist in favor of the qualified but what the Constitution requires. It requires electors of a city; in other words, the taxes certain officers to be elected by the people. It does not require other officers to be so elected. in our cities would have to be levied and apThese are to be provided for by law. If unsat-propriations made in a general meeting of isfactory laws are made, the presumption is that the people will choose legislators who will make a change."

The right to vote for all civil officers and the right to vote on all questions in legally organized town meetings are found in the same phrase of the Constitution and the same rule of construction is applicable to one as to the other. If the right to vote for all civil officers applies only to those officers whose election is required by law to be by the people, it is logical to hold that the right to vote on all questions in legal town meetings applies only to town meetings that may be required to be held by law. The effect of the decision in Re Election of the School Committee of the City of Woonsocket, supra, is that we must look to other sections of the Constitution to find what officers must be elected by the people, and those officers must be elected by all the voters. Likewise we must find in some other part of the Constitution a requirement that town taxes shall be levied in a town meeting. As there is no such express provision it is entirely within the province of the Legislature to determine whether there shall be any "legally organized town meeting" for that purpose.

[4] It may be suggested that, with relation to the personal property voter, the proviso in article 7, section 1, of the amendments guarantees to him the right to vote on any proposition to impose a tax or for the expenditure of money, and that the only way in which he may exercise such right is in town meeting. The proviso applies to the preceding right given to all registry voters to

the qualified electors of the city. No such necessity has ever been suggested.

[5] The first question discussed above was directed to the point whether the proposed act limited the constitutional right of a property voter to vote on questions in town meetings, and the second question now to be discussed involves a consideration of whether the proposed act limits any constitutional voting rights of the registry voter.

A reference to section 4 of the proposed act shows that the members of the financial council are to be nominated and elected by the electors of the town of Warwick qualified to vote on any proposition to impose a tax or for the expenditure of money in said town. The basic principle underlying this section is constitutional. There can be no question raised as to the details of the method in which the election is to be carried out. The Legislature may generally pass such regulations with respect to the conduct of elections as to it may seem proper and expedient. The question is a narrow one and involves a consideration as to whether the members of the financial council are civil officers within the contemplation of this constitutional provision in whose election the registry voters must be allowed to vote. This question has been considered in several decisions with reference to other cases. In re Newport Charter, 14 R. I. 655; Wood v. Quimby, 20 R. I. 482, 40 Atl. 161; In re Election of School Committee of the City of Woonsocket, 28 R. I. 629, 72 Atl. 417. It can hardly be contended that the members of the financial council provided for in the proposed act are

nification of the term.

"The term 'civil officers' primarily, if not solely, has reference to municipal and state officers, and we think it may well be doubted whether any of the officers provided for in said charter are civil officers' within the legal sig* * But, even admitting that the assessors and collector of said district are civil officers, they are clearly not such as are contemplated in the constitutional provision now under discussion; and this being so, it was perfectly competent for the General Assembly to provide that only the inhabitants of said district qualified to vote in town affairs on a proposition to impose a tax or for the expenditure of money should be eligible to vote and act at the meetings of the corporation."

The court said immediately preceding the above quotation:

electors shall annually 'choose and elect so many town officers as by the laws of this state are or shall be required, a provision which goes back to the Digest of 1719, and which has continued to the present time. It clearly implies that the electors are to elect only such officers as are required by law to be so elected.

*

"Evidently the Constitution has not been understood to guarantee a right to every elector to vote for every civil officer. The course of legislation and practice of election, which we have noted, have been both a contemporaneous and for all civil officers means 'officers as by the laws continuous interpretation that the right to vote of this state are or may be required.' It recognizes the right of electors to vote for all officers, who are to be elected by the people, except as shall vote for all officers whose election, under provided, but it does not require that electors the law, is not to be made by the people."

The reasoning of the court in the above case is directly applicable to the present question. The members of the financial council are not required under the proposed act to be elected by the people. They are to be elected by a very limited number of electors, namely, the electors qualified to vote on any proposition affecting the finances of the town. tion quoted in said case from the Digest of 1844 is found in Gen. Laws 1909, chapter 49, section 1:

The sec

their town election days, choose and elect as "The electors in each town shall annually, on many town officers as by the laws of the state are or shall be required; that is to say" (enumerating a large number of town officers) "and all such other officers as by law are required in such town and as each or any town shall have occasion for."

"We do not think this provision has any relation to a quasi public corporation. It relates in terms solely to the election of civil officers, and to other questions which may be voted on in 'legally organized town or ward meetings,' and we do not think it ought to be or can be properly extended by construction to include any officers who may be elected in a quasi public corpora-sembly, and by the authority thereof it is en"Section 1. Be it enacted by the General As

tion."

The construction of the constitutional provision in the case of Wood v. Quimby, supra, was carried to its logical conclusion in the case of In re Election of School Committee of the City of Woonsocket, 28 R. I. 629, 72 Atl. 417, supra. We have discussed this case at some length in the consideration of the preceding question. The city charter of the city of Woonsocket provided that the members of the school committee should be elected by the city council. After holding that the members of the school committee are "civil officers," the court (page 630 of 28 R. I., page 417 of 72 Atl.) says:

"The question then, is, do the words imply that every elector has the right to vote for all civil officers, so that all civil officers must be chosen by a vote of the people?

The same provision is found in the Digest of 1822 in force before the adoption of the Constitution, at page 258:

acted, that the freemen in each town shall annually, on their town-election days, choose and elect so many town officers as by the laws of this state are or shall be required; that is to

say.

The phraseology of the two sections is identical with the exception that the word "electors" is substituted for the word "freeThis was rendered necessary, of men." course, by the change in the suffrage qualifications under the Constitution.

It is not the question whether the General Assembly might provide for the election of the members of the financial council by all the electors of the town. The proposed act provides that they shall be elected by the electors of the town of Warwick qualified to vote on any proposition to impose a tax or for the expenditure of money. The office "Neither the words themselves nor the prac-of financial councilman under our law is a tice under them carry a necessary implication to that effect. The words are not 'a right to vote for all civil officers,' but 'in the election of all civil officers,' in town or ward meetings. They are entirely consistent with the interpretation that they give to all electors the right to vote for all officers who are to be so elected by the people under the Constitution or by law, other than those specially excepted. * * "In Public Laws 1844, the first digest after the Constitution, the act relating to the election of town officers, page 300, provides that the

new civil office. It has never been created in any town in this state. The whole course of decision in this state is that registry voters under this section of the Constitution have the right to vote for those officers only whose election is required to be by the people.

In re Newport Charter, 14 R. I. 655, was decided before the adoption of the Bourne