Frederick C. (Frederick Charles) Brightly.

A Collection of leading cases on the law of elections in the United States with notes and references to the latest authorities online

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Online LibraryFrederick C. (Frederick Charles) BrightlyA Collection of leading cases on the law of elections in the United States with notes and references to the latest authorities → online text (page 29 of 71)
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decision of the supreme court of New Jersey, in Taylor v. Griswold, 3
Green 228, where it was ruled, that the obligation and duty of corpora-
tors to attend in person and execute the trust or franchise reposed in or
granted to them, is implied in and forms a part of the fundamental con-
stitution of every charter in which the contrary is not expressed. In
that case, it was said by Chief Justice Homblower, *^ that when the
charter is silent, and no by-laws have yet been passed, regulating the
mode of election, and of voting upon other questions that may arise in
conducting the ordinary and appropriate business of the corporation, the
corporators, when lawfully assembled, must be governed by the same
rules and principles that prevail in all primary assemblies ; that is, until
a different rule has been established by some competent authority, every
question must be decided, and every election determined, by the ma-
jority ; or, in other words, by the major part numerically of those who
are personally present and voting.*' ^* It is incidental to every corpo-
ration to have the power of making by-laws, regulations and ordinances,
relative to the purpose for which it was instituted. But this incidental
>f legislation is limited, not only by the terms of the charter (accord-
the maxim, expresBum facit ceuare taeitum)^ but by the spirit
sign of the charter, the purpose for which it was created, the
nrhich the legislature had in view, and the general principles and
of the common law. If, in view of these first and elementary



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Brown v. Commonwealth. 285

(Proxies.)
principles, we repeat the question, whether the right to make a by-law,
dispensing with the personal attendance of members, and permitting
them to appear and vote bj proxy, is incident to a corporation, the
answer most be in the negative ; such a power is not essential, nor even
apparently neeeuofry^ to carry into effect the object for which corpora-
tions are generally created.'* The learned chief Justice then went on
to show that snch power was not conferred by a general authority, in
the charter, to make by-laws for the goyemment of the corporation ;
and that although, in the absence of any charter provisions, a corpora-
tion has power to provide for the mode of election to its corporate
offices, yet, that it does not follow that it may permit its members to
delegate their corporate rights, and send an agent or proxy to represent,
deliberate. Judge and vote for them. *^The common law," concludes
the learned Judge, ** which requires all votes to be given in person, is
a part of the law of the land ; the by-law in question is repugnant
thereto, and consequently void." See 4 Kent Com. 295 n.

A stockholder may revoke a proxy, though given for a valuable con-
sideration, if necessary to prevent a fraudulent use of it. Reed r. Bank
of Newburgh, 6 Paige 887.



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286



State v. Adams.
In the Supreme Court of Alabama.

JANUARY TERM 1829.
(Rbpobtbd 2 Stewabt 231.)

IMajariiies.']

Where two candidates receive an equal number of votes, there is no
election. The sheriff has no authority to give a casting vote between two
candidates for the office of sheriff.

An act providing that the returning officer shall only vote in a certain
contingency, is constitutional ; a citizen, by accepting office, may waive a
constitutional franchise.

If a vacancy in office exist, to be filled by executive appointment, the
Judiciary cannot inqube into the reasons of the governor for making the
appointment

A failure to elect, creates a vacancy, which can be filled by executive
appointment

Information in the nature of a quo warranto, on the rela-
tion of John R Anderson, to inquire by what authority
James H. Adams claimed to exercise the ofBce of sheriff
of Marengo county.

The defendant alleged in his answer, that at the general
election, held for Marengo county, on the first Monday in
August 1828, the relator, John R Anderson, one Henry
Chiles and Thomas Adams were candidates for the office
of sheriff; that Anderson and Chiles received an equal
number of votes, and more than Adams ; that in conse-
quence of a mistake in computing the votes, the late sheriff*
proclaimed Anderson duly elected; that on the Saturday
after the election, the mistake having been discovered,
the sheriff re-examined the returns, and found that An-
'. Chiles had received an equal number of votes,
L he gave his casting vote in favor of Anderson,
ded his certificate of the result to the secretary
That Anderson did not receive a majority or



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State v. Adams. 287

(Majorities.)

pluralit J of votes, at the election, but only an equal num-
ber with Chiles, whereby, in consequence of the expiration
of the term of office of the former sheriff, the office became
vacant, and was filled by the governor, on the 25th Sep-
tember 1828, appointing and commissioning him, the
defendant, to the said office of sheriff. That imder this
commission, he had been duly qualified, had given bond,
and had taken on himself and continued to discharge the
duties of the office.

The relator put in a demurrer to this answer, which was
overruled by the court; a replication was then filed and
issue joined, and at the same time, there was a verdict and
judgment for the defendant. The relator assigned for
error the overruling of the demurrer, and the decisions on
certain bills of exception, which are fully stated in the
opinion of the court.

Taylor, J., delivered the opinion of the court. It is
insisted for the relator: 1. That he was legally elected,
and is entitled to the office: 2. But if he was not, that
there was no vacancy in the office, which authorized an
executive appointment; and therefore, the defendant is
not authorized to discharge the duties of the office: 8.
But if the court should come to neither of these conclu-
sions, that the judgment must be reversed and remanded,
because the court below erred in rejecting the evidence
ofiered by the relator, and receiving that to which he
objected. I will reverse the order in which these points
were discussed in the argument, and consider the third
point, in the first instance.

The relator, on the trial of the case in the circuit court,
offered in evidence some papers, purporting to be repre-
sentations to the governor, in the form of petitions of
many of the citizens of Marengo, by which he was in-
duced to commission Adams, with a view to show, as he
alleged, that fraud was practised upon the governor, in
procuring fix)m him the commission; which were ex-



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288 State v. Adams.

(Majorities.)

eluded. 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 inves-
tigation 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 gov-
ernor has made an appointment, what hinders us j&om
also looking into elections made by the people, and ex-
cluding 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 con-
sequences of a nature too plainly intolerable to be enter-
tained 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. K 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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State v. Adams. 289

(Majorities.)

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 mis-
take 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 an-
swers 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 aftect their com-
petency.

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 an-
other 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 com-
plaint 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 termi-
nated. But as that branch of the subject is more imme-
diately 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
19



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290 State v. Adams.

(Minorities.)

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 gen-
eral election, when such vacancy shall be filled by the
qualified electors; and the sherifi' then elected shall con-
tinue in office for three years." This section provides that
elections for this office shall regularly take place; there-
fore, it would be a strained and forc^ 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
pubUc 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 elec-
tions 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 woxild 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
constitutioif, and they proceeded to provide a mode of ap-



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StAtb v. Adams. 291

(Majorizes.)

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 constitu-
tion in keeping an incumbent always in office; the former
sheriff holds his office until the next election has termi-
nated; 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 ter-
minates, 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 ap-
pointment except for a limited period, viz: until the con-
test 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, ancl



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292 State v. Adams.

(Majorities.)

endeavor to give, with plainness, the reasons which operate
upon my mind in bringing me to the conclusion to which
r 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 incontro-
vertible, that if he had the power inmiediately 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 imconstitutional. 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 re-
sided 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 descrip-
tion XK>ntained 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
boimdaries by which the different departments of the
government are to be limited, and to secure the great
rights ^nd 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



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State v. Adams. 293

(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 al-
terations 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 construc-
tion 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 gov-
ernment, nor all of them combined, have the power to
divest an individual of this right, otherwise than is pre-
scribed 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 con-
stitution 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 ^Hhe 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



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294 State v. Adaks.

(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 suffittge, 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 herein-
before advanced, that a failure to elect such officer occa-
sions 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 relin-
quish 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 pre-
scribe 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 constitution-
ality 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.



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State v. Adams. 295

(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 influ-
ence this court in arriving at a conclusion. That such a
law would be politic, will not be disputed by me; but be-
cause 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 ap-
pointment 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 preponder-
ance, when an equal vote has been given for two candi-
dates; but all admit, that if such a power exists, it is con-
ferred alone by the act of 1812 and that of 1819 which
recognises it; for, as to the provision in the seventh sec-
tion 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-



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296 State v. Adams.

(Majorities.)

lution of a lew 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 com-
missioned 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 sherifi" the power of



Online LibraryFrederick C. (Frederick Charles) BrightlyA Collection of leading cases on the law of elections in the United States with notes and references to the latest authorities → online text (page 29 of 71)