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(Majorities.) 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 (Majorities.) 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
I 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.
(Majorities.) 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 can, for this reason, 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 of 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 the people of the county. Receive this argument in all its latitude, and it defeats itself; for it has not 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 for 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 recognises it; for, as to the provision in the seventh 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 would then 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 revo(Majorities.) lution 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 third 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 the state, for the purpose of electing governor, members of congress, members of the general assembly, 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 third 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 fifth section of this act, after specifying the manner in which votes shall be given in, namely, by ballot, &c., proceeds thus: “but when two persons shall have an equal number of votes, the returning officer shall have the casting vote, but shall not vote in any other case whatsoever.” At that time, members 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 conducting the election?" If it does, then the relator was duly elected; if it does not, then he was not. There is certainly a great distinc
(Majorities.) tion between the manner of conducting an election, and the election itself; by “the manner of conducting the election,” I understand the formal part of the election, namely, the mode of voting, the mode of receiving 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, certainly, cannot be synonymous with effecting. Now, the giving a casting vote is clearly not a part of the “manner 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 definitely 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 qualifications 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, the sheriff and managers have completed their duty as respects the manner of conducting the election; 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.