JULY 1829. The State V. Adams. a Laws of Ala. 274. While I admit Courts have no authority, in order to carry into effect their own notions of expediency, to extend the operation of statutes, by construction, to persons or things not within their legititimate meaning, though they be equally within their reason, I am equally zealous to maintain, that we should not torture language or pervert its usual acceptation, to produce difficulty or inconvenience, or to search for a casus omissus in legislation; but that we are bound to interpret all statutes according to their true intent and meaning, and such as are of a remedial nature, liberally and beneficially. Then when it is declared that the elections authorized by the constitution shall be conducted in the manner prescribed by the then existing laws of the Alabama Territory, I can understand the language in no other sense, than that such elections are not only to be commenced, but finally consummated by the same rules; nor can I conceive, while two or more candidates have an equal number of votes, that the election has been completed. It is true the authority derived from the constitution as referred to, had exclusive reference to the first elections to be held under it; but the Legislature was equally competent to legislate on the subject, and at the succeeding session, shortly after the first elections, an act was passed to regulate the elections of the several officers before mentioned, by which it is provided that the elections aforesaid, "shall be conducted by the sheriff and managers appointed in the same manner as heretofore by law directed. "a This language is substantially the same as that employed by the constitution, and must evidently refer, as there was no other, to the election law of 1812, which authorized the returning officer to give the casting vote. 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 alone, has a constitutional right, when convened, to judge of the election, and return; till then nothing can be done, and the Senate have no power to give the casting vote, nor has the Governor that power, or any authority to fill the appointment, and the consequence of their declaring a vacancy and ordering a new election would be, that the county would remain unrepresented during the greater part, or all the session. Similar inconvenience would result from the same cause in reference to sheriffs, unless a tie ipso facto constitutes a vacancy subject to executive or judicial appointment, and this according to our polity would be a most novel idea. And though a commission has issued to Adams, who was not a candidate, the Governor has not viewed the difficulty in this case, in the light of an ordinary vacancy; he expresses in the commission as the cause of making the appointment, that the election had been contested; nor has any authority been discovered for an executive appointment in cases of contested elections. These are cases in which I conceive both law and usage have directed that the person ostensibly elected, and having the certificate of the returning officer, shall exercise the office until the contest be terminated in favor of one of the parties, or until the tribunal authorized to try and determine the contest shall declare the office vacant: and if the law, as in this case, has provided no other mode of deciding the contest, the judiciary is always competent. The official acts of the person in office under color of right, during the pendency of the contest, are valid as the acts of an officer de facto, if not de jure. The direction of the constitution on this head is, that if a vacancy occur in the office of sheriff subsequent to an election, it shall be filled by the Governor, as in other cases, until the next general election. Shortly after this election was held, and the difficulty had arisen as described, the Governor commissioned Adams, who otherwise had no claim to the office. At a later period, ascertaining there was no prospect of a speedy decision of the contest, he issued a commission to Anderson pursuant to his certificate of election; but Adams refusing to yield his authority, continued to exercise the functions. It is conceded that a commission does not confer the right to an elective office, except in case of vacancy, as directed by the constitution, and that it is only evidence of the right, which may be resisted, and either sustained or annulled, according to the true result of the election. JULY 1829. The State V. Adams.] JULY 1829. The State V. Adams. Then, as it is not conceived that any such vacancy existed as is contemplated by the constitution, and inasmuch as the sheriff had certified that Anderson was duly elected, I find it necessary to express an opinion that the commission to Adams was unauthorized, and that on a full view of the merits, that said relator was legally and constitutionally elected; that such is the only legitimate conclusion, whether it be considered that he had a majority of five votes, as first calculated, or that the number of votes was equal for him and another, as supposed on the second examination of the certificates, five days afterwards, and that the sheriff then gave him the casting vote. As the delay in determining the election was produced by a mistake, rendering the casting vote unnecessary, and the law does not limit the time, it cannot affect the relator's title to the office. 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 affects 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 vote 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 members 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 suf A frage and defeat their will, however united in any case, by transferring the appointment to the Governor, and this may be repeated as often as elections shall be held. more palpable invasion of the elective franchise cannot be well imagined; and the principle being established on constitutional grounds, the remedy would be placed beyond the control of the Legislature. 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. JUDGE PERRY also dissented, and concurred in the opinion delivered by JUDGE SAFFOLD. Judgment affirmed. JUDGE COLLIER, presided below, and did not sit. JULY 1829. The State v. Adams. STEBBINS V. SUTTON. When parties have agreed that the deposition of a witness shall be taken and read on the trial, it must be read, although it appear by the deposition the witness was interested. On the trial of an action of assumpsit in the Circuit Court of Baldwin county, Pell B. Sutton recovered against JULY 1829. Stebbins V. Sutton. Russell Stebbins, a judgment on a verdict for $1,000. The declaration was for goods sold, materials furnished towards the building of a steamboat, &c. The plea was the general issue. A bill of exceptions was taken by Stebbins, the matter of which is here assigned for error. It appears by the record, that there had been a previous HITCHCOCK, for the plaintiff in error. By JUDGE PERRY. In pursuance of the agreement, the deposition of the witness Motley was taken and read on the trial in the Court below, which was excepted to, and forms the ground of error insisted on in this Court; because as it is contended, the witness was directly interested in the event of the suit. Such interest has at all times excluded witnesses from giving testimony in Courts of justice, unless the parties by their agreement make such testimony legal. Have they done so? The strong language used in the agreement, that the deposition should be read in evidence upon the trial of the cause, is emphatic of the intention of the parties, that they intended to render the witness competent, whatever his interest might be; this construction, it is believed better protects the rights of the parties and preserves the rules of law, than any other that can be given to the agreement; because it may fairly be inferred from the record, that both parties knew what the testimony of the witness would be, previous to the agree ment, as the defendant below, in an affidavit for a new |