JULY 1829. THE STATE V. ADAMS. 1. A sheriff, under the act of 1819, has no authority to give a casting vote between two candidates for sheriff. 2. Such a power not being expressly given, cannot be allowed by impli cation. 3. Where two candidates for sheriff obtain an equality of votes, no election is effected. 4. In such case a vacancy exists, such as may be filled by executive appointment till the next general election. 5. A citizen may by accepting a beneficial public office, waive a constitutional franchise; so an act providing that a public officer shall vote only in a certain event, is not unconstitutional. 6. The original election returns are admissible evidence to prove the true number of votes given, although they had been for some days in an exposed situation, and altered in some respects, their fairness and alteration being matters for investigation by the jury. 7. Courts of justice cannot inquire into the reasons of the executive for making an appointment to fill a vacancy, when the right exists. Therefore, petitions made to the Executive, shewing the motive for the appointment, are not legal evidence to impeach the officer's right. This was an information in the nature of a quo warranto, filed in the Circuit Court of Marengo county, at the May term, 1829, on the relation of John E. Ander son. The information alleged, that James H. Adams for the space of nine months and more, had used and still used without authority, the office of sheriff of Marengo county, which office and the privileges and immunities thereof he usurped &c; wherefore he was required to answer to the State by what warrant he claimed to use and exercise said office, &c. The defendant appeared and filed his answer, alleging, "that at the general election held for Marengo county on the first monday in August 1828, the relator, John E. Anderson, one Henry Chiles and Thomas Adams, were candidates before the people for the office of sheriff; that Anderson and Chiles received an equal number of votes for said office, and more than Thomas Adams; that on computing the votes from the different precincts, a mistake was made in the number of votes given for Anderson; that under the influence of said mistake, the late sheriff proclaimed Anderson duly elected; that on the Saturday after the election, the mistake was discovered, and the sheriff then re-examined the returns and found that Anderson and Chiles had each received an equal number of votes, when the sheriff gave his casting vote in JULY 1829. The State V. Adams. favor of Anderson, and forwarded his certificate of the result, to the secretary of State, as follows: "I Benjamin Barton, sheriff of the county of Marengo, do hereby certify, that at an election held on the first Monday of August instant, for the purpose of electing a sheriff &c. The votes being equal for John E. Anderson and Henry Chiles, I, myself have given the casting vote to John E. Anderson, in consequence of which he is duly elected sheriff of Marengo county, &c. Given under my hand and seal, at office, the 18th August 1828. (signed,) B. BARTON, sheriff. [SEAL.]" The defendant further alleged, that Anderson did not receive a majority or plurality of votes at the election, but only an equal number to that received by Chiles, whereby, in consequence of the expiration of the commission of B. Barton, the office became vacant and subject to be filled by appointment by the Governor; that there had been no election held since. He further alleged that on the 25th of September 1828, the Governor issued his commission under the great seal, appointing him, James H. Adams, sheriff of Marengo county, which commission he produced, and which is as follows: "The State of Alabama, and by the authority of the same. John Murphy Governor of said State to James H. Adams, greeting. Whereas the election of sheriff of Marengo county held on the first Monday in August last has been contested, of which due notice has been given to the executive department: Now therefore, in pursuance of the power vested in me, and in order to provide in this contingency for the demands of the public service, I do by virtue of the power and authority in me vested, hereby commission you sheriff of the county of Marengo as aforesaid, to hold the said office until superseded by the determination of the contested election, or otherwise by the constitution and laws of the State: You are hereby therefore authorized and required to do and perform all and singular the duties incumbent on you as sheriff of Marengo county, according to law, and the trust reposed in you. Given under my hand and seal of the State, at the town of Tuscaloosa, this 25th day of Septen ber in the year 1828, and of the Independence of the United States the fifty third. (L. S.) (signed,) JOHN MURPHY. JAMES I. THORNTON, Secretary of State." Under this commission the defendant alleged that he was duly qualified, had given bond, had taken on himself and continued to discharge the duties of the office." The solicitor and counsel for the relator demurred to this plea, and the demurrer was by the Court overruled. A general replication was then filed, and issue joined, and at the same term, a verdict was found for the defendant; on which judgment was rendered for him. By a bill of exceptions taken by the relator at the trial, it appears that the relator requested the Court to instruct the jury, that if they believed from the evidence that Anderson and Chiles had an equal number of votes, and the sheriff had given the casting vote to Anderson, he had a right to do so, and that thereby Anderson was duly elected. This charge the Court refused, and instructed them that the sheriff had no right to give the casting vote in an election for sheriff, and that if there was a tie between the candidates, there was no election. The relator offered to prove that there had been a notice given to Anderson to contest his election, which contest had not been prosecuted, but relinquished, and that a petition had shortly after the election been presented to the Governor, soliciting the appointment of Mr Adams, for particular reasons and particular purposes. This evidence the relator's counsel offered as an explanation, and as containing as it was said, a full reason why the commission issued to Adams. This evidence, on the objection of the defendant, was rejected by the Court. The defendant offered in evidence the certificates of the votes given at the different precincts, to prove that a tie actually existed between Chiles and Anderson. It was proved that the certificates had been received, and that a count was made thereon on Tuesday, the day after the election, on which the sheriff had declared Anderson elected by five votes over Chiles, and that then the papers were left open and subject to public inspection, and were frequently inspected, and in fact that one of the returns had been altered so as to make the votes of Turkey-creek precinct read and be in figures, eleven for Chiles, when it should have been nine. The relators counsel objected to the introduction of said certificates, for any purpose whatever; but the Court overruled the objection and permitted them to be read, and instructed the jury to give them what weight they might think them entitled to as the data on which the count was made on Tuesday and Saturday. JULY 1829. The State V. Adams. JULY 1829. The State V. Adams. The relator's counsel requested the Court to instruct the jury, that as the returns from the different precincts in the county were directly from the hands of the managers of the election on Tuesday, when they were first counted out, and not liable to be altered, they afforded better evidence of the true state of the votes than they could on Saturday when they were counted the second time, and that this was a conclusion of law and not a matter of interence. This charge the Court declined to give. They ferther requested the Court to instruct the jury, that the sheriff had a right to give his vote as a citizen, even after the polls were closed, which was also refused. The relator in this Court assigns for error, the overruling of the demurrer to the defendant's plea, and also the several decisions made as shewn by the bill of exceptions. SHORTRIDGE, for the State. LYON and KELLY, for the appellee. GAYLE, for the appellant, in conclusion. By JUDGE TAYLOR. 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 be 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 induced 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 co-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 more competent to determine upon the qualifications of citizens for office, or at any rate, that they were more deliberate in investigating those qualifications than the executive, to whom the law has confided the appointment. But in what manner, and at what time, is such an investigation to be made? Is it to be done upon the request of the Governor? and are we to wait until such request is made? Or is any person who conceives himself either wiser, or more anxious for the pulic good than the chief officer of State, to give the information to the Courts? And if we are to inquire into the manner in which the Governor has made an appointment, what hinders us from also looking into elections made by the people, and excluding men from the offices to which they have been elected, because we believe such election was secured by fraudulent practices? This doctrine is fraught with consequences of a nature too plainly intolerable to be entertained for a moment. The Court was therefore right in rejecting the testimony offered by the counsel for the relator, as specified in the record. It was equally so in receiving the returns from the precincts made to the sheriff. These returns form the data upon which the sheriff is to arrive at the result of the election. They are evidence to him of the number of votes given in at each precinct, and for whom. If they had been locked up when received by the sheriff, and never inspected or seen by any other person, they would certainly have formed a part of the evidence to be submitted to the jury in trying the question of right to the office. As it is from these returns that the sheriff ascertains the result, it is conceived they are admissible before the jury, to shew that he was authorized to draw such a conclusion from the premises before him. It is true they would be far from conclusive, but liable to countervailing testimony, going to show error from mistake or design. Does then the circumstance of those returns having remained open to public inspection, and an alteration having been made in one of them, render them incompetent? It seems to me this question answers itself. These facts, with respect to them, are to be ascertained, and if so, must they not be before the Court, before such inquiry can be made? Such circumstances are to be weighed by the jury in determining what credit they will give to the returns, but cannot affect their competency. As to the second point, it is believed thiscase is in substance one between the relator, Anderson, and the defen JULY 1829. The State V. Adams. |