2 Stew. 231 | Ala. | 1829
It is insisted for the relator.1st, that he was legally elected, and is entitled to the office; 2d, but if he was not, that there was no vacancy in the office which authorized an executive appointment; and therefore, the defendant is not authorized to discharge the duties of the office. 3. But if the Court should not come to either of these conclusions, that the judgment must he reversed and -remanded, because the Court below erred in rejecting the evidence offered by the relator, and receiving that to which he objected. I will reverse the order in ■which these points were discussed in the argument, and ■consider the third point in the first instance.
The relator, on the trial of the case in the Circuit Court, offered -in evidence some papers purporting to be representations to the Governor in the form of petitions of many of the citizens of Marengo, by which he was in■duced to commission Adams, with a view to show, as he alleged, that fraud was practised upon the Governor in procuring from him. the commission; which were excluded. That the judiciary should inquire into the inducements which operated upon a eo-ordinate branch of the ■government in making an appointment which is confided to its discretion, would indeed be a delicate and unenviable duty. It would be declaring that the courts were
As -to the second point, it is believed thiscase is in substance one between the relator, Anderson, and the defen
But it is argued that, in this instance, the commission shows that the Governor did not intend to make an appointment but for a limited period, viz: until the contest was decided, and the contest being abandoned, the defendant is no longer authorized to act in the office. It was clearly the intention of the Governor to appoint the defendant for the whole time that the office would have been vacant without such appointment, and the manner in. which he has expressed such intention is not material-
It is contended that the sheriff, Barton, had no power to give the casting vote, for two reasons. 1st. because there is no statute authorizing him to do so. 2. If there is, such statute is unconstitutional. I will examine the last reason first.
The constitution, article 3, section 5, declares, “every white male person of the age of twenty-one years or upwards, who shall be a citizen of the United States, and shall have resided in this-State one'year next preceding .an election, and the last three months within the county, city, or town, in which he offers' to vote, shall be. deemed a qualified elector.” It is insisted in argument that every citizen of the description contained in this section, has a right to vote; that shcriffs;:as well as others, are included; and that to prohibit their voting, except in a particular event, is depriving them of this constitutional privilege.
That this objection is specious, is certain, but I do not think it will bear the test of scrutiny. Constitutions are always intended to lay down general principles, to define boundaries by which the different departments of the government are to be limited, and to secure the great rights and privileges of the people; such at least, are the objects of our federal and state constitutions. These great principles, thus declared, are to be acted upon by the different departments of the government, and some of them to be brought into active operation by the aid of subsequent en-*
The position, that an officer may be compelled to relinquish a part of his constitutional privileges as a citizen to promote the convenience of the community, was well sustained by the counsel for the relator, in the cases put of clerks, &c. &c. being required to keep their offices at the several places of holding the courts of the different counties, which necessarily compels them to live there; and to be compelled to reside at a particular place, is as certainly -an unconstitutional restriction upon citizens generally, as any which can be imagined. Offices are created, and officers appointed for the convenience and advantage of the people, and so long as these objects are kept in view in legislative enactments with regard to them, their rights arc not infringed. The constitutions of all the States prescribe the general qualifications of electors; in several, the sheriff is required by statute to give the casting vote; and in none, so far as I am informed, has the constitutionality of such a law been questioned. I am therefore of opinion that such a statute would not be unconstitutional.
I come now to examine whether such a statute does actually exist in our statute book.
To prove that there does, much has been advanced in argument, which would have been sound logic if addressed to the legislative branch of the government, but which ought not to influence this Court in arriving at a conclusion. That such a law would be politic, will not be disputed by me; but because I am of this opinion, it does not follow that others must agree with me, far less that I am for this reason to determine that there is such a law. It has been urged that the constitution secures the right tohtlie ■ electors of each county, to elect members to the General Assembly, sheriffs, and clerks; and that unless some person in the. county is authorized to give a casting vote in the event of a tie, there would be a failure to elect, and the office must remain vacant; or the Governor may appoint some individual to fill the vacancy, however obnoxious such appointment might be‘to tjjj^people of thd
The decision of this case then, turns simply upon this point, does the act of 1819 vest in the sheriff the power of giving the casting vote, in the event of an equal number of votes being given to two persons, candidates for the office of sheriff’? The 3d section of that act, which is entitled “an act to regulate elections,” &c. declares, “that hereafter the court house shall be the place of holding general elections in each and every county throughout this State, for lhe purpose of electing Governor, members to Congress, members of the Generl Aassembly, sheriffs, and clerks. The election at the court house, as aforesaid, shall be holdcn on the first Monday, and day following, in August, in each and every year.” The 3d section provides, “that the, elections aforesaid shall be conducted by the sheriff and managers appointed, in the same manner as heretofore by law directed.” In order to ascertain the manner in which elections were conducted before the passage of that act, it is necessary to recur to the act of 1S12, passed by the Legislature of the Mississippi Territory, entitled “an act to amend and reduce into one the several acts regulating elections,” The Sth section of
The practice of extending statutes far beyond their legitimate meaning, indeed of often giving them a construction directly in opposition to the plain intention of those who made them, has been in many instances carried to a most unwarranted length. That statutes, which have in view the remedy of a particular mischief, should be Construed by the Courts so as to carry that intention • into effect, is, in the general, a plain proposition; but when the formal mode prescribed for carrying into execution the provisions of one statute, is recognized and prescribed as the mode of carrying into execution the provisions of another, to determine that all the substantial enactments of the first are included in the last, might produce much confusion; nor can I perceive the necessity for these extended constructions. Did our General Assembly meet but-once in some dozen years, the argument ab inconvenienti would possess great force indeed; but when there are annual sessions, surely it is safe and more becoming in the judicial tribunals to suggest to this' more immediate organ of the people, the amendment which they consider politic, than to make It themselves.
I consider the policy upon which our happy institutions are based, of keeping separate and distinct the three departments of the' government, as the one best calculated to secure the permanence of our liberties; and while I would watchfully guard against the encroachments of the executive or legislative departments upon the independence of the judicial, I would be equally vigilant not to pass the boundary laid down for me as a judge. While all shall act in this way, we shall move on harmoniously, and the great objeet of the constitution, the security of the people’s rights, will be perfectly effected.
í consider it unnecessary to dwell upon the consequences produced by the announcement • made by the sheriff, Barton, that the relator was duly elected. This can have no possible effect. If he had received a minority of votes, this declaration could not make him a sheriff, either de facto or de jure; if he had received a majority, he was entitled to the office whether declared so or not.
I am of opinion the judgment should be affirmed, and sf this opinion are a majority of the Court.
I have not formed an opinion on the point whether the act of 1812 was abrogated or not, by the constitution; but I most'fully concur in the construction given to that act in the above opinion.
An election was held at the time appointed, when Barton, the sheriff then in office, computed the votes, and proclaimed the relator elected by a majority of five votes; five days afterwards, on suggestion of a mistake, he re-examined the certificates returned by the managers, from the different precincts; the result of which was, that Anderson and H. Chiles had received an equal number of votes; whereupon the sheriff gave the casting vote in favor of the relator, and made out and forwarded to the department of State a certificate thereof. An attempt having been made to contest the-election of Anderson, and notice thereof given to the executive department, the Governor proceeded to fill the office, and commissioned the defendant, Adams, “to hold the said office until superseded by the determination of the contested election, or otherwise by the constitution .and laws of the State.” No method lor contesting elections for sheriff having been prescribed by statute, nothing" farther appears to have been done in the contest until it was renewed in this judicial form. The contest appears .to have been attempted in the first instance, and the executive appointment to have been made on the supposition ■that Barton, the returning officer, had no right to give the .casting vote; or if he had, it was not done in time. These points involve all the difficulty of the case.
The.right of the returning officer to give the casting vote in the event of a tie in the election of sheriffs, is denied, on the ground that the act of 1812, under which, .as modified and extended, the authority is claimed, does not apply to elections for sheriff. It is true this act of the Territorial Legislature was passed with exclusive reference to elections for Representatives to the General Assembly, and at that time no other State or county officer was elective by the people; hence the expressions of the act embrace Representatives only. I think there can be no difficulty in deciding, that unless the application of the act of 1812 has been extended by subsequent legislation, no change in the form of the government, or extension of the right of suffrage, would confer the right of .giving the casting vote in the election of other officers.
Neither .Senators nor clerks of either Court, more than sheriffs, were elected by the people in 1812. The government being territorial, had no Senators, and the clerks and sheriffs were appointed by the Executive. Hence it appears to me impossible that the election of either of these officers, or of Representatives, can be governed by rules different from the others. The Legislature, as well as the Convention, has arranged them in the same class for election, and explicitly declared that it shall be conducted in the same manner prescribed by the pre-existing election laws. Under the different construction, if a tie occur in the election of a Senator, there is no authority competent to determine the election. The Senate
It has also been contended in favor of the defendant, that the provision in the election law authorizing sheriffs to give the casting vote, and denying them the right to vote in any other case, is unconstitutional, for the reason that it affecls their right of suffrage. This objection will be but. slightly noticed, as it is not sustained by the opinion of a majority of this Court.
Besides the reasons already advanced to prove that the right to give the casting vole is consistent with both the law and constitution, it may be also observed, that other privileges intended to be secured by the constitution, and which are deemed inestimable, cannot be insured without the existence of this right. The constitution guarantees to the electors of each county, the right to elect member’s to the General Assembly, sheriffs, clerks, &c. Then, the effect of a denial of authority to some one in the county to give the casting vote in the event of a tie is, that the county must remain for a time without any such officer, or that the Governor, residing in a distant part of the State, may control the result according to his will, by appointing whom he pleases, however offensive to the county; and true as it is, that this state of things may not often occur, yet every election is subject to it, and the principle is the same as if the occurrence was more frequent. And it is also important to reflect, as insisted by the relator’s counsel, that if it be admitted that the mere act of contesting an election creates a vacancy, the inevitable consequence is, that any designing individual, by merely exhibiting the form of a contest, may deprive the electors of the county of their constitutional right of suff
This would be a state of things than which nothing could be more foreign from the intention of the Convention, And to all the objections urged on the ground that the individual rights of the returning officer would be withheld^, by denying him the common right of suffrage, I think a sufficient answer has been given by the relator’s counsel, that it is an usual and necessary incident to the office which the incumbent has voluntarily accepted; that the sheriff cheerfully submitted to this qualification of the right, has duly exercised it, and that it neither did or could affect the franchise of any other person. It may be also observed that the official situation of a sheriff gives him extraordinary influence in elections; his right of suffrage is secured whenever his vote can give to the candidate of his choice a plurality; and then he has the peculiar right of voting with a'knowledge of the state of the polls, whereby he may secure his first, second, or other choice.. These advantages would appear to compensate for any rights yielded. These are all the points which I think necessarily involved in the contest; and according to my view of the questior, Anderson was, and is entitled to the office. Hence my dissent from the opinion of a majority of the Court.'
Judgment affirmed.
Laws of Ala-28it-
Laws of Ala-27il-
Laws of Ala. 274.