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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 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 determined that public policy required those officers should be elected by the people, and that the same persons should only retain the office for three years. It was easy to provide that elections should be held at stated periods, and it was as easy to determine that the individual should only continue in office three years; but the convention could 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 offices by the people, it was necessary that the duties of the office should 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 next 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 ap
pointment, 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, subsequently 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 office; the former sheriff holds his office until the next election has terminated; and there can never be a vacancy for a longer time than it requires 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 the 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 except 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.
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 judg ment 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 the 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: 1. 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, Art. III., § 5, declares that "every white male person of the age of 21 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 enactments 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 a 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 third article? Certainly, the right of suffrage to all persons included in 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 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 refusing to vote at an election; by voting for only one officer, when he might have voted for five or six; by 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 himself a greater advantage. This may be tested by other provisions of the constitution; the tenth 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 declare 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 do become one, he, for the time, relinquishes the 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 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 hereinbefore advanced, that a failure to elect such officer occasions a vacancy in the office; if such provision existed, the election would not have been 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., being required to keep their offices at the several places of holding 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 informed, has the constitutionality of such a law been questioned. I am, therefore, of opinion, that such a statute would not be unconstitutional.
*This is one of those old time notions which prevailed in 1829, but is practically repudiated in the year of our Lord 1871.