JULY 1829.

The State

V.

Adams.

dant, Adams; that it is the true interest of the State that every citizen should have his rights, and therefore, the State will lend its name to a citizen to assert those rights, when they affect his title to a public office of which another is in the enjoyment. But this Court does not believe that either law or policy requires that one man in the occupancy of an office shall be put out upon the complaint of a stranger. It is good policy that offices shall be filled, particularly so important an office as that of sheriff, not that they should be vacant. Therefore, if the relator has not right to the office, the inquiry is terminated. But, as that branch of the subject is more immediately connected with this part of the investigation than any other, I will proceed now to inquire whether, if it be admitted the relator was not elected, there existed such a vacancy in the office as authorized the Governor to appoint? The words of the Constitution, relating to the subject, are to be found in the Laws of Alabama, page 924, section 24, and are as follows, viz: "A sheriff shall be elected in each county by the qualified electors thereof, who shall hold his office for the term of three years, unless sooner removed, and who shall not be eligible to serve, either as principal or deputy, for the three succeeding years. Should a vacancy occur subsequent to an election, it shall be filled by the Governor, as in other cases; and the person so appointed shall continue in office until the next general election, when such vacancy shall be filled by the qualified electors; and the sheriff then elected, shall continue in office for three years.” This section provides that elections for this office shall regularly take place; therefore, it would be a strained. and forced presumption to suppose that there would be no election held, as that would be directly in the teeth of the provision. The whole object of the section is to secure the means by which the offices of this description throughout the State shall be filled, and the terms for which they shall be held. The convention had their eye fixed upon the object of keeping the office always occupied. They determine that public policy requires that these officers shall be elected by the people, and that the same persons shall only retain the office for three years. It is easy to provide that elections shall be held at stated periods, and it is as easy to determine that the individual shall only continue in office three years; but the convention would make no provision by which the office would be at all times filled by the people. There might be vacancies, and as it would require time to fill

such vacancies by the people, it is necessary that the duties of the office shall be discharged in the mean time. The convention thought it wiser that the election by the people should be postponed until the next general election for members of the General Assembly, &c. than that they should be specially convened for that particular purpose, and that in the mean time the Governor should make an appointment. The convention, therefore, intended to provide for filling the office by an election in the first instance, and a vacancy by executive appointment when it occurred. They took it for granted elections would always be held in conformity with the provisions of the constitution, and they proceeded to provide a mode of appointment, in the event of the election by the people not effecting the object of providing a sheriff for the next three years; that is, in case the office should be vacant from any cause, after such election was held. The words of the constitution are, "should a vacancy occur subsequent to an election," &c. clearly meaning, should a vacancy occur subsequent to the time prescribed by law at which a sheriff is to be elected, not to the time when a sheriff is actually elected. This construction, and no other, completely fulfils the intention of the constitution in keeping an incumbent always in the office. The former sheriff holds his office untill the next election has terminated; and there can never be a vacancy for a longer time than it would require to apprise the Governor that it is necessary to fill it. When the time fixed by law for the general election arrives, the people meet at the polls and give in their votes, should they fail to elect a sheriff by being divided as to their choice, the general election terminates, and a vacancy in the office of sheriff takes place; it is "subsequent to an election." There was no vacancy before, as the former sheriff continues in office until that time. There is one now, because no election is effected, and it is within the authority of the Governor to fill it.

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.

JULY 1829.

The State

V.

Adams.

JULY 1829.

The State

V.

Adams.

The main inquiry now arises, was the relator elected sheriff of Marengo county at the general election? As there is a difference of opinion among the members of the Court on this subject, and as it is of great importance to the parties, I shall consider it with some minuteness, and endeavor to give with plainness the reasons which operate upon my mind in bringing me to the conclusion to which I have arrived, and which is the result of my best judgment and most mature reflection. To determine this question, it is only necessary to ascertain whether the sheriff, Barton, was authorized to give the casting vote to the relator, the people having given an equal number of votes to him and to Chiles. For I consider it incontrovertible, that if he had that power immediately at the close of the election, he had it whenever he learned for the first time that it was necessary to use it, provided he exercised it in a reasonable time after receiving such information.

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 sheriffs, 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

actments of the legislative department. Constitutions are intended to be of a permanent nature, liable to amendment it is true, yet guarded against the hand which would rashly and inconsiderately make alterations in their provisions. It is obvious then, that a constitution must be liberally construed, with the view of effectuating the intention of its framers; and that the history of the times in which it was framed, the manner most efficient in securing its objects, the restraints intended to be imposed and the privileges intended to be granted, must all be taken into consideration in giving a construction to those instruments. What then was the privilege intended to be secured by the 5th section of the 3d article? Certainly the right of suffrage to all the persons included within its provisions; and it is equally certain that no department of the government, nor all of them combined, have the power to divest an individual of this right, otherwise than as is prescribed by the constitution. Any citizen however, is authorized to refuse to exercise this privilege. He may do it in various ways; as by refuing to vote at an election, voting for only one officer when he might have voted for five or six, absenting himself from an election, &c. The right of suffrage then, is a privilege granted by the constitution to the citizen, intended to secure his own rights. But if the citizen can refuse to exercise this privilege, he may also relinquish it for a time, to secure to himself a greater advantage. This may be tested by other provisions of the constitution. The 10th section of the declaration of rights declares, that "the accused has a right, in all prosecutions by indictment or information, to a speedy public trial by an impartial jury of the county or district in which the offence shall have been committed." This has always been considered as securing a privilege to the accused, and that he might, under the statute authorizing a change of venue, relinquish this right, and be tried elsewhere. So, if the General Assembly declares that no sheriff shall vote at an election, except in case of a tie, it deprives no man of his privilege; for no man is bound to become a sheriff, but if he does become one, he, for the time, relinquishes,his right of suffrage, to be exercised only in the excepted case, for which he receives a greater good. He does this too, with the view in part of securing an election, the very object intended to be effected by this provision of the constitution. It is the policy of the constitution that an election should be made by the people, and therefore, an act of the

JULY 1329.

The State

V.

Adams.

JULY 1829.

The State

V.

Adams.

General Assembly tending to advance this object, would be consonant with the best public policy. Nor does the idea that the sheriff may be authorized to give a casting vote, militate at all against the opinion herein before advanced, that a failure to elect such officer occasions a vacancy in the office. If such provision existed, the election would not have closed until the sheriff had ascertained the tie, and given his vote.

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 are 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 informel, 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 to the 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 tpeople of the