"CLINTON.—It appears that the sheriff of Clinton delivered the box containing the ballots to Theodorus Platt, Esq., who had no deputation, but who delivered them into the secretary's office, as appears by his affidavit.
"Question. Ought the votes of Clinton to be canvassed?"
Mr. King's opinion to the Canvassers.
"OTSEGO.—It may be inferred, from the constitution and laws of the state, that the office of sheriff is held during the pleasure of the Council of Appointment, subject to the limitation contained in the 26th section of the constitution. The sheriff may therefore hold his office for four years, unless within that period a successor shall have been appointed, and shall have entered upon the execution of the office. The term of four years from the appointment of R. R. Smith not having expired, and B. Gilbert not having entered upon the execution of the office before the receipt and delivery of the votes by R. R. Smith to his deputy, I am of opinion that R. R. Smith was then lawful sheriff of Otsego.
"This opinion is strengthened by what is understood to be practice, namely, that the office of sheriff is frequently held for more than a year under one appointment.
"R. R. Smith's giving notice to the Council of Appointment of his disinclination to be reappointed, or his acting as supervisor, cannot, in my opinion, be deemed a resignation or surrender of his office.
"Should doubts, however, be entertained whether R. R. Smith was lawfully sheriff when he received and delivered the votes to his deputy, the case contains facts which in another view of the subject are important. It appears that R. R. Smith was appointed sheriff of Otsego on the 17th of February, 1791, and afterwards entered upon the execution of his office: that no other person was in the execution of or claimed the office after the date of his appointment, and before the time when he received and delivered the votes of the county to his deputy; that during that interval R. R. Smith was sheriff, or the county was without a sheriff; that R. R. Smith, during the election, and when he received and delivered the votes to his deputy, continued in the actual exercise of the shrievalty, and that under colour of a regular appointment. From this statement it may be inferred, that if R. R. Smith, when he received and delivered the votes to his deputy, was not de jure, he was de facto, sheriff of Otsego.
"Though all the acts of an officer de facto may not be valid, and such of them as are merely voluntary and exclusively beneficial to himself are void; yet such acts as tend to the public utility, and such as be would be compellable to perform, such as are essential to preserve the rights of third persons, and without which they might be lost or destroyed, when done by an officer de facto, are valid.
"I am therefore of opinion, that admitting R. R. Smith, when he received and delivered the votes to his deputy, was not de jure sheriff, yet that he was de facto sheriff; and that his receiving and delivering the votes being acts done under colour of authority, tending to the public utility, and necessary to the carrying into effect the rights of suffrage of the citizens of that county, they are and ought to be deemed valid; and consequently the votes of that county may lawfully be canvassed.
"2d Question. The preceding answer to the first question renders an answer to the second unnecessary.