Huntsville gazette., 1892-07-23

verse Of this proposition is not true,
Taking the petitions, original and anne nd
ed, as one pleading, then the allegations
show that this incompetency existed,
both at the time of the petition and st
the time Of appointment. Ii the ap-
pojntees have become competent since
their appointment and filing OF this per
tion, such defense cannot be raised by
demurrer. but must be made by plea or
answer in the nature OF a plea on con-
fession and avoidance.
1he defense is raised also that it is
not necessary under the law that in
spectors should read and write, or that
the defendants in the appointment were
found to appoint inspectors who could
read and write, 1t is the office OF a man
damus to compel the officers to act and
Judges of courts have no power to com
mand them how to act Ilnless the law
itself points out how and in what way
they should act. TO call into exer-
else the extraordinary powers OF
mandamns clear legal right shall
be established The qualification laid
down in section 352 of the code is, that
the officers, when practicable, shall APP
point inspectors, two of whom shall be
of opposing political parties. Another
section provides when one inspector
fails to appear, the other two can supply
his place and that section in that event
requires no special qualification. II no
inspectors appear, the returning officer
can appoint them and the only qualifi-
cation required is, that they shall be
qualified voters, entitled to vote in said
4, ,al Il Al ia hnl
No express qualification is fixed by
statute except as above stated, but 1t IS
insisted by petitioner that there is an
implied duty upon the part of the otfic-
ers to appoint men as inspectors who
can read and write, because the duties
required of them by law are such that
they cannot perform them unless they
be able to read and write. 1t may be
admitted that those that can read and
write will be better able to perform the
duties Of inspectors or that an election
cannot be held at all unless some one of
them can read and write. The question
then is, will mandamus lie for this reas
son only. The officers alone are the
Judges of the competency, no educa-
tional qualification has been fixed by
the legislature, the only thing in express
terms being required officers that their
appointees shall be of opposing political
parties. If they had complied with the
legislative requirements and appointed
two inspectors OF opposing political par
ties at each voting precinct, l think the
courts would be powerless to control
their discretion any further. Judges
and courts cannot make the laws, their
duty is to construe them as they find
and the legislature is che only lawmak
ing power and it alone has the power to
correct evil. The legislature has not said
these officers shall appoint inspectors
who can read and write that it shall be
qualification for inspectors There
are many duties devolvlng
upon officers that can be better per-
| formed by men who can read and write,
| yet the legislature has never fixed any
such qualification for them, and no one
will now say that because man cannot
read and write that therefore, under the
law, he is disqualified from holding
office. We all know that there
are certain cases tried by juries
that the Jurors would be better qualified
to perform their duties cc4ld they read
and write; and in some instances calcu-
late interest, etc; notably. where the tes-
timony consists, in part, of dispositions,
and also in actions or accounts where II
becomes necessary to calculate interest
on notes and accounts, and also the fore
man of tae grand jury signing his name
as such on indictments where required by
law to be signed, yet no lawyer would
move to quash venire, bt cause the ju-
rors, or part thereof, could not read mol
write, and no one would sue out man
damus to compel the jury commission to
draw only such persons as can read and
write to serve the jurors: The reason
for this simply is that the legislature has
not made the fact that a man eau read
and write qualification for holding al
office or serving as jurors. Neither has il
4 in express terms required, that man tC
perform tie duties of an inspector and as
qualification for such place should be
able to read and write, and until 1t does
do so, courts and judges are powerless tc
fix qualification that the legislature has
not prescribed and which alone it has the
authority to require.
The statute requires that the inspectors
when practicable shall be, two Of them,
of opposing political parties. Before
enter upon the discussion of this phase
of the case and deem it just and proper
to say for these officers that on the 9th
of June when these appointments were
made, with the knowledge of the law
then had, would have appointed as one Of
said inspectors republican as one of the
| opposing political parties.
The two principal parties of this State
since the war have been democrats anC
republicans, and since the passage of this
law requiring two of the inspectors to be
of opposing political parties uniform Gus
tom and rule had been to recognize only
republicans and democrats in the appoint
ment of inspectors.
The decision of our supreme court il
the case of Dudley, ct ais, had not ther
been promulgated; the question had no.
been discussed and hence no reason wa:
then known why they should have de
parted from the rule heretofore acted up
on. We do judicially know that prior t
the 9th of June, two conventions haC
been held, at one of which Jones wa.
nominated for governor with full State
ticket. At the other Kolb was nominated
for governor with full State ticket, ex-
cept supreme judges; we also know tha
each adopted a platform of principles diff
fering in policies and in some respects
and agreeing in others. We also know
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