county. Receive this argument in all its latitude, and it defeats itself; for it has not yet been contended by any, that the constitution gives to any person a casting vote to produce a preponderance, when an equal vote has been given to two candidates; but all admit, that if such a power exists, it is conferred alone by the act of 1812, and that of 1819, which recognizes it; for as to the provision in the 7th section of the schedule to the constitution, all agree that it was only intended to provide for the first election under the constitution, and this object being effected, it became a dead letter. Suppose the act of 1812 had been expressly repealed by that of 1819, so far as related to the casting vote of the sheriff, who then would have given such vote? Certainly any other citizen would have been equally authorized to do so, with the sheriff. The answer is plain, none would have had such authority; a vacancy would have occurred, not so destructive to the true interests of the people as might be apprehended, as it could at once be filled by the Governor of their choice; and after the revolution of a few months, the electors of the county would again meet at the polls, either to confirm the appointment made by their Chief Magistrate, by electing the man commissioned by him, or to put some person in his place, in whom they more implicitly confided.

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 the 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 holden 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 1812, passed by the Legislature of the Mississippi Territory, entitled "an act to amend and reduce into one the several acts regulating elections." The 5th section of

JULY 1829.

The State

V.

Adams.

JULY 1829.

The State

V.

Adams.

this act, after specifying the manner in which votes shall
be given in, viz: by ballot, &c. proceeds thus: "But when
two persons
shall have an equal number of votes, the re-
turning officer shall have the casting vote, but shall not
vote in any other case whatsoever." At that time, mem-
bers of the House of Representatives were the only officers
elected by the people. Does this provision, for deciding
in the event of a tie, form a part of the "manner of con-
ducting the election?" If it does, then the relator was
duly elected; if it does not, he was not. There is cer-
tainly a great distinction between the manner of conduct-
ing an election, and the election itself. By "the manner
of conducting the election." I understand the formal part of
the election, viz: the mode of voting, the mode of receiv-
ing and registering the votes, of computing them, &c.
The word manner has never been considered as including
substance, but form only, and the word conducting, cer-
tainly cannot be synonymous with effecting. Now the
giving a casting vote is clearly not a part of the "man-
ner of conducting," but it is effecting the election. The
qualifications of the electors is substance, the manner of
determining upon those qualifications is form. Under the
provision which we are considering, it devolved upon
the managers to determine whether the voters possessed
the necessary qualifications to vote; but the law must de-
finitely prescribe those qualifications. In the event of a
tie, the giving of the casting vote is as substantial a part
of the election, and more so if possible, than the qualifica-
tions of the electors. It is so far from being the manner
of conducting the election, that it is absolutely making the
election. When the polls are closed, and the votes are
counted out, the sheriff and managers have completed
their duty as respects the manner of conducting the elec-
tion, and if no election of any officer is effected by reason
of a tie, and any individual is authorized then to vote, he
is as completely the elector, as if no other person had been
permitted to vote at all. This is placing in the hands of
the sheriff, a great and important privilege, too important,
I conceive, to be given by mere implication, unless it was
necessary to the security of some great interest. I believe
therefore, that the power of the sheriff to give such vote,
ought not, and legally cannot, be extended by implication;
and that therefore, he has not the power to give the casting
vote, except in the instance expressly provided for, viz:
in the event of a tie between candidates for the House of

Representatives; and that the argument ab inconvenienti cannot in this instance, be permitted to weigh with the Court.

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 object of the constitution, the security of the people's rights, will be perfectly effected.

I 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 of this opinion are a majority of the Court.

JULY 1829.

The State

v.

Adams.

JULY 1829.

The State

V.

Adams.

By JUDGE LIPSCOMB. 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.

By JUDGE SAFFOLD. 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 II. 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 for 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 offcer 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 legisla tion, 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 oflicers.

cer.

JULY 1829.

The State

V.

Adams.

a Laws of

Laws of Ala. 274.

But I maintain that the constitution and statutes of the State have given the same right in the election of all county officers in which the sheriff is the returning offiThe fact that a different regulation exists in the election for Governor, can furnish no argument against the right in the other elections mentioned, for in this, various considerations prove that the General Assembly is the only competent authority to act. In the event of an equal division of votes in the election of Representatives to Congress, the several returning officers of the district shall determine which of the candidates shall be the Representative. This may be regarded as one of the many indications of the policy of the State, to maintain inviola- Ala. 284. ble the right of suffrage, by confining the election and ultimate choice of all officers to the electors of the district or county entitled to the franchise. The right of the returning officer to give the casting vote for sheriff, may, I conceive, be fairly derived from the statutes of 1812, regulating elections for Representatives to the General Assembly, conjointly with the 7th section of the schedule to the constitution, and the act of 1819. The schedule directs, that the first election for Governor, Representatives to Congress, members of the General Assembly, clerks of the several Courts, and sheriffs of the several counties, "shall be conducted in the manner prescribed by the existing election laws of the Alabama Territory." Had there been a tie in the election first held under the constitution, for any State Senator, can a reasonable doubt be entertained as to the authority of the returning officer to have given the casting vote? All admit he had this right in an election for Representative, for the act of 1812 had expressly so directed; the constitution had continued in force all the Territorial laws not repugnant to it, and had further declared as above recited, that the election for members of the General Assembly, and all the other officers mentioned, should be conducted in the manner prescribed by the existing elec tion laws of the Alabama Territory. What more could have been necessary to place the conduct or entire management of the elections of Senators and Representatives on the same footing? My present object is to prove that members to both branches of the Legislature must be elected in the same way, and that it is impossible that a difference can exist between the election of Senator and sheriff, as respects the right of the returning officer to give the casting vote.