USA > Rhode Island > Rhode Island : three centuries of democracy, Vol. II > Part 25
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own. The Charter . . . . had been outgrown by the necessities of the crowded, rich and flourishing state. The immense amount of property here in action .... required, for the purpose of justice, a much nicer and more systematic judicial administration than the compara- tive poverty and simplicity of the sparse population of colonial days. In the meantime the world-famous maxim of Montesquieu concerning the distribution of the powers of govern- ment . ... had been acted upon in every one of the numerous state Constitutions of the United States, as well as in the federal Constitution, for the avowed purpose of securing, and as necessary to secure, the safety of the life, liberty and property of the citizens. . . .. It is quite evident, too, that this distribution of powers was, in our Constitution, made for the spec- ial purpose of depriving the General Assembly of this long exercised judicial power, which, rightly or wrongly, that body had assumed under the Charter. The executive power had been nominal, merely, under the Charter ; and the Constitution extends it very little. No jealousy of it, or of its assumption by the enterprising and all-absorbing legislative department of gov- ernment, ** did, or could exist. It was the assumption of judicial power by the General Assem- bly which must have been aimed at by this clause of distribution-a power grown to be of great importance, as controlling the large and increasing property amassed in the state, and the con- plicated interests in it. which from time to time required to be judicially ascertained and adjusted." The court then cited the various provisions in the Constitution relating to the court as confirming its interpretation, and construed the words "the judicial power of this state" as meaning "that after the adoption of this Constitution, judicial power, in the constitutional sense, shall be exercised in this state, not by the General Assembly, but only by the courts of the state." The court emphasized the distinction between "the legislative power," mean- ing "all legislative power"; "the judicial power," meaning "all judicial power," because neither was qualified, and "the chief executive power" vested in the Governor. The same "decent respect to the opinions of mankind" that urged the framers of the Declaration of Independence to "declare the causes which impel them to separation" led the court to its con- cluding paragraph: "We have thus carefully and fully gone through with the reasons and authorities which bear, or are deemed to bear, upon two of the questions raised in this case; because, as we have had occasion to say before, at this very term,tf we should not feel jus- tified in declaring an act of a coordinate branch of the state government unconstitutional and
§48 Federalist, 199.
** See Chapter XXV for a discussion of the appointive power as curtailed by the General Assembly. ttIn the matter of Dorrance Street, 4 R. I. 230, 240.
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void, unless it plainly so appeared to us; and because we are solicitous, that upon so impor- tant a subject, and one in which we are asserting the constitutional power of our own depart- ment against the encroachments of another, not only to be, but to seem to be, in the right. In a case so clear from doubt as this is, we should be equally unworthy of the post of duty in which we are placed by the Constitution if we swerved from the duty which that post devolves upon us, either from want of a just attention to, or a just sense of, the rights of litigants before us, oppressed by an unlawful exercise of power by the Assembly, or from a false delicacy growing out of the conflict of power involved in the case between the legislative department of the government and our own. It is the Constitution which speaks through us, and not we alone, when we declare, as we now do, that the vote and resolution of the General Assembly, .... is unconstitutional and void.". . . The Supreme Court had not only declared its independence, by denying the authority of the General Assembly to grant a new trial, but had asserted its own right to hold the General Assembly within the limits of the Constitution by declaring acts of the General Assembly void because unconstitutional.
The decision by the Supreme Court denying the Assembly's authority to set aside judg- ments and to grant new trials effectually concluded interference by the General Assembly. In later decisions the court was keen in discriminating legislative from judicial action, hold- ing (I) that a special statute permitting sale of an equitable estate in an instance in which the court had no jurisdiction to order a sale was valid as an exercise of legislative jurisdiction ;§§ (2) that a statute permitting the discharge of a tort debtor from jail after commitment on execution was not an interference with a court process or judgment ;* t (3) that a resolution to authorize an appeal from a judgment favoring the public was simply a release of the public interest in the judgment and resembled the right of a private litigant to release a judgment ;## (4) that a statute abolishing the tort liability of a stockholder in a corporation for a debt of the corporation, even after the court had refused to issue a writ of habeas corpus, was valid .* } The reason for the decisions in these cases might be found in the simple fact that the action of the General Assembly in none of them actually affected a procedure or judgment of the court. The Supreme Court has avoided declaring legislation unconstitutional, holding (1) that a statute may be constitutional in part and unconstitutional in part ;* (2) that a statute will not be declared unconstitutional unless the part that may be unconstitutional affects the interest of the party raising the constitutional question;} (3) that a statute "not so clearly constitutional as to authorize the court to declare it void" must be sustained;} (4) that a reasonable doubt as to constitutionality must be resolved in favor of constitutionality ;§ (5) that the constitutionality of a statute cannot be tested unless a party's right is positively affected ;;* (6) that a statute must be sustained as constitutional unless unconstitutional- ity is clearly demonstrated ;** (7) that every intendment will be construed as favorable to constitutionality.§*
STATUTES DECLARED UNCONSTITUTIONAL-The court has held to be unconstitutional (I) a statute making a report by auditors prima facie evidence, because it infringes the right of trial by jury ;¿ t (2) a special resolution to authorize the mortgaging of an estate under guardianship in an instance in which it did not appear that the mortgage was primarily for the
§§ Thurston vs. Thurston, 6 R. I. 296.
*+In re Nichols, 8 R. I. 50.
##State vs. Dexter, 10 R. I. 341.
** Penniman's petition, 11 R. I. 333. *State vs. Clark, 15 R. I. 383.
v8. Paine, 46 R. I. 439; State vs. Heffernan, 40 R. I. 121. ¡State vs. Amery, 12 R. I. 64; State vs. Mylod, 20 R. I. 632 ; Newport vs. Horton, 26 R. I. 196 ; Sackett #Cleveland vs. Tripp, 13 R. I. 50 ; State vs. Narragansett, 16 R. I. 424.
§The Election of Officers by the Senate, 28 R. I. 607.
** Sackett vs. Paine, 46 R. I. 439 ; State vs. Church, 48 R. I. 265; Fritz vs. Presbrey, 44 R. I. 207.
#*Sayles vs. Foley, 38 R. I. 484.
§* Manufacturers Mutual Fire Insurance Co. vs. Clark, 41 R. I. 277. #*Francis vs. Baker, 11 R. I. 103.
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benefit of the wards ;§t (3) a statute excluding a type of evidence that had been valid so far as the statute affected evidence of matters preceding the statute;§# (4) a statute making the "notorious character of premises or notoriously bad or intemperate character of persons fre- quenting the same" prima facie evidence of "keeping for sale";"* (5) a statute providing penalty by fine and imprisonment for "every person who shall keep a place in which it is reputed that intoxicating liquors are kept for sale ; If (6) a statute providing that evidence of sale or keeping for sale shall be prima facie evidence of an illegal sale;Tt (7) a statute vali- dating appeal bonds signed by an agent before the statute was passed;f# (8) article VIII, section 10, of the Constitution of Rhode Island, requiring election by majority, so far as it applies to elections by Representatives in Congress ;§§ (9) a statute permitting the owner of an estate in fee to deposit security for a widow's dower, so far as it affected dower already set out ;* ] (10) the Newport city charter, so far as it excluded registry voters from election of city councilmen ;¡ 1 (11) a statute permitting commitment to an insane asylum that did not provide statutory process for obtaining release to be initiated by the person committed ;#1 (12) a statute authorizing administration of the estates of persons absent and not heard from in seven years, since administration may not be granted on the estate of a living person ;§T (13) a statute forbidding the giving of trading stamps with articles sold.§§ On the other hand, the court has sometimes sustained the constitutionality of a statute by restricting its operation to an interpretation falling within the Constitution. Thus under a statute authoriz- ing the Rhode Island Suburban Railway Company to "acquire by condemnation such lands in any town as said corporation may from time to time take, in manner provided, for its cor- porate purposes," but requiring a court to determine whether the land was necessary to the corporation for its corporate purposes, it was held that the statute granted only the power to acquire land for public purposes, since "a conflict between the statute and the Constitution is not to be implied, and where the meaning of the Constitution is clear the court will, if pos- sible, construe a statute in accordance therewith to give the statute effect." Hence the statute was held to be constitutional .* In the particular case in subsequent proceedings it was held that "the test of a public use is whether the taking is essential to the service of the public franchise, or whether it pertains only to the private interests of the company in the details of its business."; Hence, because in the operation of an electric railway, an exact location for a power house was not necessary, because of the devices in use for power transmission, the company could not condemn a site for a power house. The power of eminent domain is given to public service corporations, particularly railway corporations, to permit a convenient loca- tion of right of way; in this instance the site selected for the power house was more than five miles from the line of the railway. Because other sites might serve, the court held that the location was not necessary and not within the statute.
AN INDEPENDENT "JUDICIAL" COURT THAT HESITATED TO GRASP "ALL JUDICIAL POWER" -The Supreme Court had waited a dozen years from the adoption of the Constitution for the opportunity to declare its independence of the General Assembly. Assuming that it was merely the successor of the Supreme Judicial Court under the Charter, emphasizing the adjec-
§tBushe vs. Mechanics Bank, 12 R. I. 513.
§tReynolds vs. Randall, 12 R. I. 522. (Ex post facto.)
T*State vs. Beswick, 13 R. I. 211.
TTState vs. Kartz, 13 R. I. 528.
T+State vs. Mellor, 13 R. I. 666.
TÆAndrews vs. Beane, 15 R. I. 451.
T$In re Plurality Elections, 15 R. I. 617. *TTalbot vs. Talbot, 14 R. I. 57.
Tin re the Newport Charter, 14 R. I. 655.
IfDoyle petition, 16 R. I. 137.
§TCarr vs. Brown, 20 R. I. 215.
¿§State vs. Dalton, 22 R. I. 77.
*In re R. I. Suburban Railway Company, 22 R. I. 455; and see Coderre vs. Travelers, 48 R. I. 152. tIn re R. I. Suburban Railway Company, 22 R. I. 457.
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tive "judicial" as a word of limitation, it had attained through the decision in Taylor vs. Placet# the status of an independent judicial court exercising, with courts of inferior juris- diction, "all the judicial power" granted by the Constitution. The seed for a renewed dis- cussion of the function of the court had been sown almost ten years before the almost revolu- tionary decision in Taylor vs. Place.§ Under the Barnard School law of 1845 the new school officer-the Commissioner of Public Schools-was given authority to entertain, hear and decide appeals from the action of school committees. His function was judicial in its nature and his jurisdiction was appellate. His decisions if and when underwritten by one justice of the Supreme Court were final. The new statute avoided constitutional issues by a provision that no person should be deprived of his remedy at law by reason of the appeals section ; but it actually had set up a court of last resort in the new department of public instruction. In the course of time the appellate jurisdiction of the Commissioner of Public Schools was defined by the Supreme Court, which apparently did not recognize the Commissioner as an usurper invading the field of "all judicial power." Thus it was held that the Commissioner's decision, when approved by a justice is final and that a decided case may not be reopened by the Com- missioner ;¿ that the Commissioner's appellate jurisdiction is not limited to complaints aris- ing from infraction of law, but extends to reviewing legal acts lying within the discretion of the school committee. [] The decisions of the Supreme Court were written, respectively, by Chief Justice Ames, and Justice Potter, the latter of whom had been Commissioner of Public Schools.
When the State Board of Charities and Corrections was established it was given authority to send to the state workhouse or state prison youth committed to the state reform school who were found to be incorrigible. A boy who had been released on parole was arrested on a serious charge, and committed by the board to the state workhouse as incorrigible. With an application for habeas corpus it was argued that the procedure was judicial, and that the com- mitment was an alteration of the original sentence. The Supreme Court held that the sec- ond commitment was disciplinary rather than judicial, ** and not an invasion of the rights of the prisoner, since the statute preceded the sentence. The Supreme Court had not, at the time, attained the vision of a court with final revisory and appellate jurisdiction, nor was it anxious a quarter of a century later to assume a right to entertain appeals from the judicial and quasi-judicial proceedings of the administrative boards and commissions which the Gen- eral Assembly was creating in large number, beginning with boards of canvassers and police ·
commissioners.tt
Article XII of Amendments to the Constitution was adopted in 1903; it gave the Supreme Court "final revisory and appellate jurisdiction upon all questions of law and equity," with power to issue prerogative writs. Still the court hesitated to review a decision of the Board of Canvassers in Providence, holding that the board exercised judicial power, and that the determination of the board as to the election of members of the city council of Providence is final.## After reargument, the court explained its previous decision as limited to questions of fact, of which the finding of the board was final, and on the suggestion of counsel that Article XII gave the Supreme Court "final revisory and appellate jurisdiction upon all ques- tions of law and equity," intimated that it would review questions of law properly raised in quo warranto proceedings.§§ Fifteen years later the court had so far modified its view of
+#4 R. I. 324. §4 R. I. 324.
#Smith's Appeal, 4 R. I. 590. [Appeal of Cottrell, 10 R. I. 615, overruling Gardner's appeal, 4 R. I. 602.
** Cassidy's petition, 13 R. I. 143.
ttSee Chapter XXV. Kelley vs. Whitley, 27 R. I. 355; Greenough vs. Lucy, 28 R. I. 230 ; Dwyer vs. Board of Canvassers, 28 R. I. 401.
##Gainer vs. Dunn, 29 R. I. 232.
§§Gainer vs. Dunn, 29 R. I. 239.
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the finality of proceedings by boards and commissioners as to suggest a doubt as to findings of fact, saying, "It has been the settled practice of this court to give great weight and per- suasive force to the findings of fact of those coordinate branches of the government. . . . Before we hold adversely to their finding the relators must satisfy us that their action cannot be supported by a reasonable intendment and allowable presumption in its favor."*
A NEW DOCTRINE OF JUDICIAL SUPREMACY-With respect to issues of law the court appears never to have entertained a doubt as to its jurisdiction after the decision in Gainer vs. Dunn .; In one opinion it clarified the detailed application of the ballot law .*¿ It entertained a series of appeals from rulings of the Public Utilities Commission in the application of fares and zones .* § It reviewed an election in grand committee, and issued an injunction against the issuing of a certificate of election .* [ It entertained an appeal from the action of the Paw- tucket Board of Canvassers in making up a list of personal property voters, and declared the action void .** It has issued mandamus to compel a town council to count the ballots cast in an election, instead of accepting the count by wardens.it In the broadening conception of the significance of the jurisdiction conferred upon the one Supreme Court under the Consti- tution exercising "final revisory and appellate jurisdiction," the court had made itself a truly final court of appeal on all questions of law and equity. It attained this status at a time in which the multiplication of boards and commissions created for the administration of the extended and extending functions of the state government threatened, under an assumption of final judicial functioning, to establish a "supreme court" in each major division of state service exercising a jurisdiction final and conclusive in fact and in law. The new conception of the function of the court brought all boards and commissions definitely under revisory and appel- late supervision, thus assuring an essential uniformity in legal principle, an adherence to the Constitution, and a responsibility for the observance of law. The pathway in the other direc- tion pointed to chaos in administration, and to administration based on expediency rather than law. Or, assuming a purpose on the part of boards and commissions to conform to law, exactly that confusion and variability that prevailed in the early history of the Supreme Court of the United States, when justices wrote opinions in turn. John Marshall, by writing all opinions himself for a period, brought to the court the advantage of a settled policy and a uni- form phraseology. In the same way the exercise of final revisory and appellate jurisdiction by the Rhode Island Supreme Court has standardized the application of law by commissions and boards. The Twelfth Amendment has made possible the single final Supreme Court in Rhode Island.
THE TRIAL OF DORR-The trial of Thomas Wilson Dorr for treason* was extraordinary, first, because the indictment was returned in Newport by a Newport County grand jury, whereas all the overt acts of which Dorr had been accused had been committed in Providence County ; and, second, because the trial was in Newport County before a Newport County jury. The "change of venue," a concession granted occasionally on the request of an accused person who fears that he may not, because of aroused public opinion obtain a fair trial before an impartial jury in the vicinage, was ordered by the General Assembly under the provisions of the Algerine act passed in the early stages of the Dorr revolution as a war measure, and is not properly charged to excessive zeal on the part of the Supreme Court. Dorr and his coun-
*Carpenter vs. Comery, 45 R. I. 266.
+29 R. I. 239.
*#Rice vs. Westerly, 35 R. I. 117.
*§ Public Utilities Commission vs. Rhode Island Company, 42 R. I. 379.
*ICarpenter vs. Sprague, 45 R. I. 29.
#*Lennon vs. Board of Canvassers, 29 R. I. 329, 456.
#State vs. West Warwick, 42 R. I. 13 ; Hall vs. Town Council, 48 R. I. 8. *Chapter XVIII.
R. I .-- 48
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sel did not question the constitutionality of the Algerine act; indeed, the Constitution of 1842 does not specify a trial in the vicinage. Wishing a speedy trial on the merits, Dorr waived at the outset his plea in abatement to the charge of treason, that treason is not an offence against an American state because it is defined in the Constitution of the United States as an offense against the nation. While the court had no part in the process whereby a picked jury hostile to Dorr was obtained,; the court did overrule Dorr's objections to the jury and his objections to testimony; and in giving the case to the jury Chief Justice Durfee instructed the talesmen in such manner as to leave them only the choice of disregarding his instructions or returning a verdict of guilty. For practical purposes the verdict was directed. The court also overruled all objections and motions made by Dorr's counsel before the formal entry of judgment on the verdict, and at the end sentenced Dorr to life imprisonment and to prison immediately, thus effectually forestalling recourse to the courts of the United States. Chief Justice Durfee's conduct and attitude throughout the trial were such as to wring from Dorr the statement at the end that he had not had the fair and impartial trial that the Constitution and laws sought to guarantee. The Chief Justice seemed to be obsessed by an assumed obligation to assure Dorr's conviction of treason. In an address to the grand jury of Bristol County he had pleaded for unrelenting measures to suppress the Dorr movement ; in the trial of Dorr his ruthless rulings against the prisoner at the bar recalled the tales told of judicial prosecutions in England following uprisings against the government. No doubt the Chief Justice believed that the gravity of the situation warranted extraordinary measures, that the power of the state government to suppress revolution must be demonstrated, that the punishment of Dorr as the leader must be certain and exemplary, and that the duty of the court for the time being was to aid the prosecuting attorney. The end was as certain as the sequence of seasons: Dorr went from court to prison as a martyr, and was released from prison as a hero. The trial, conviction and imprisonment of Dorr wrested from him the stigma of defeat and crowned him with victory. Had his return to the state been ignored by the gov- ernment, the Dorr movement in history would have occupied that oblivion to which the editor of the "Providence Journal" attempted to consign it by ridicule.
THE GORDON TRIAL-Amasa Sprague, brother of Senator William Sprague, was brutally murdered December 31, 1843. No witness of the crime was found; the dead body lay in a lonely place between the Sprague residence and a farm owned by Amasa Sprague in Johns- ton. An examination of the body and the locality indicated that he had been disabled by shooting, and then during or after a struggle with his assailant, beaten over the head. More than one of the blows had been sufficient, of itself, to cause insensibility and death; the mur- derer had struck repeatedly, either in the fury of passion or with the purpose of making death certain. Under a bridge nearby a pistol was found, probably discarded by the murderer, but, as it was not identified at the trial, possibly a weapon belonging to Amasa Sprague. Boot tracks in the snow, leading away from the body, were followed into a swamp, and there pieces of a broken fowling piece, matted with hair and blood, had been hidden. Near the gun was a coat wet with blood. The boot tracks led further to the edge of a pond, and similar tracks were picked up across the pond, suggesting that, if the same person had made both sets of tracks, he had crossed the pond on the ice. There were, however, no marks on the ice, such as might have been made by the hob-nailed boots with which the snow tracks had been made, to connect the two sets of tracks. Eventually, assuming continuity across the pond, the tracks reached a travelled road, and were lost in the maze of marks left by pedestrians, horses and other draught animals, and wagons. Beyond the road, but not directly across it, other tracks in the snow led to the rear door of the house and store of Nicholas S. Gordon. At the trial
tChapter XVIII.
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of Nicholas S. Gordon's brothers for the murder of Amasa Sprague, the defence emphasized the break in the tracks at the pond. and more the break in the tracks at the road, the latter suggesting either that the person who made both sets, if one person made them, traveled a short distance on the road before striking off again across open fields, or that the tracks away from the road were made by an entirely different person on another errand. In view of later developments it is to be regretted that the same zeal that was applied to tracing the tracks through woods and fields to the home of Nicholas S. Gordon did not suggest a search for other tracks in the snow, perhaps leading to or toward the scene of the crime, or marking the path of a man with a gun who was reported subsequently as having been seen stalking Amasa Sprague on the afternoon of the murder, and keeping himself hidden from the latter's view by favoring trees, bushes and rocks. The Gordon house was searched, and from it were taken wet boots, wet pantaloons, a waistcoat with a red stain, and a shirt spotted with red. A gun, owned by Nicholas S. Gordon, which he had purchased a short time before the murder, was not found in this search; its disappearance from the Gordon house was emphasized at the trial in the effort of the prosecution to identify the gun found in the swamp as belonging to Nicholas S. Gordon.
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