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cluded. That the judiciary should inquire into the inducements which operated upon a co-ordinate branch of the government, in making an appointment which is confided to its discretion, would indeed be a delicate and unenviable duty; it would be declaring that the courts were more competent to determine upon the qualifications of citizens for office, or, at any rate, that they were more deliberate in investigating those qualifications, than the executive to whom the law has confided the appointment. But in what manner, and at what time, is such an investigation to be made? is it to be done, upon the request of the governor, and are we to wait until such a request is made? or is any person who conceives himself either wiser, or more anxious for the public good, than the chief officer of state, to give information to the courts? And if we are to inquire into the manner in which the governor has made an appointment, what hinders us from also looking into elections made by the people, and excluding men from the offices to which they have been elected, because we believe such election was secured by fraudulent practices? This doctrine is fraught with consequences of a nature too plainly intolerable to be entertained for a moment. The court was, therefore, right in rejecting the testimony offered by the counsel for the relator, as specified in the record.

It was equally so, in receiving the returns from the precincts, made by the sheriff; these returns form the data upon which the sheriff is to arrive at the result of the election; they are evidence to him of the number of votes given in, at each precinct, and for whom. If they had been locked up, when received by the sheriff, and never inspected or seen by any other person, they would certainly have formed a part of the evidence to be submitted to the jury, in trying the question of right to the office. As it is from these returns that the sheriff ascertains the result, it is conceived, they are admissible before the jury, to show that he was authorized to draw

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such a conclusion from the premises before him; it is true, they would be far from conclusive, but liable to countervailing testimony, going to show error from mistake or design. Does, then, the circumstance of those returns having remained open to public inspection, and an alteration having been made in one of them, render them incompetent? It seems to me, this question answers itself; these facts with respect to them, are to be ascertained, and if so, must they not be before the court, before such inquiry can be made? Such circumstances are to be weighed by the jury, in determining what credit they will give to the returns, but cannot affect their competency.

As to the second point, it is believed, this case is, in substance, one between the relator, Anderson, and the defendant, Adams. 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 shall be vacant; therefore, if the relator has no 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 (to be found in the Laws of Alabama 924,

24), are as follows: "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

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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

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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

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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