"3d and 4th Questions. The sheriff is required to put into one box every enclosure delivered to him by an inspector appointed for that purpose by the inspectors of any town or district; and for omitting to put any such enclosure into the box, he is liable to prosecution; but in case of such omission, the votes put into the box, and seasonably delivered into the secretary's office, may, notwithstanding such omission, be lawfully canvassed; and equally so whether the omitted enclosure be kept back or sent forward with the box to the secretary's office. I am therefore of opinion that the votes contained in the box may lawfully be canvassed; that those contained in a separate packet, from considerations explained in the depositions, and distinct from the objection of not being included within the box, cannot be lawfully canvassed.
"CLINTON.—The deputy having no interest in the office of sheriff, but being merely the sheriff's servant, it does not seem to be necessary that the evidence of his being employed or made a deputy should be a deed or an instrument in writing, though the latter would be proper; yet a deputy may be made by parole: I am therefore inclined to the opinion that the votes of Clinton may be canvassed.
"TIOGA.—The sheriff is one who executes an office in person or by deputy, so far at least as the office is ministerial; when a deputy is required of the sheriff conomine, he may execute it in person or by deputy; but if the deputy appoints a deputy, it may be doubtful whether ordinarily the acts of the last deputy are the acts of the sheriff. The present instance is an extreme case; had the duty been capable of being performed within the county, the sheriff or another deputy could have performed. Here the deputy, being in the execution of his duty, and without the county, is prevented by the act of God from completing it; the sheriff could not appoint, and the deputy undertakes to appoint a deputy to finish his duty, who accordingly does so. The election law is intended to render effectual the constitutional right of suffrage; it should therefore be construed liberally, and the means should be in subordination to the end.
"In this case it may be reasonably doubted whether the canvassers are obliged to reject the votes of Tioga.
"RUFUS KING."
Mr. Burr's opinion to the Canvassers.
"OTSEGO.—The duration of the office of sheriff in England having been limited by statute to one year, great inconveniences were experienced, as well by suiters as by the public. To remove which it was thought necessary to pass an act of parliament. The statute of 12 Ed. IV., ch. 1, recites at large these inconveniences, and authorizes the sheriff to execute and return writs in the term of St. Michael, before the delivery of a writ of discharge, notwithstanding the expiration of the year. The authority given by this statute being to execute only certain specified duties, the remedy was not complete, and another statute [1] was soon after passed, permitting sheriffs to do every act pertaining to the office, during the term of St. Michael and St. Hilary, after the expiration of the year, if not sooner discharged. The practice in England appears to have been conformable to these statutes, [2] though the king did pretend to dispense with them by force of the royal prerogative; and this claim and exercise of a power in the crown to dispense with and control the operation of statutes, has been long and universally condemned as odious and unconstitutional; yet the form of the commission is said still to be during pleasure.
"These considerations tend to show the principles of several opinions and adjudications, which are found in English law-books, relative to the holding over of the office of sheriff.
"None of the statutes of England or Great Britain continued to be laws of this state after the first of May, 1778. So that at present there remains no pretence for adopting any other than the obvious meaning of the constitution, which limits the duration of the office to one year, beyond which the authority to hold cannot be derived from the constitution, the appointment, or the commission. If inconveniences arise, remedies can be provided by law only, as has in similar cases been done in England, deciding on legal principles; therefore, the appointment and commission, and with them the authority of Mr. Smith, must be deemed to have expired on the 18th of February.
"Yet there are instances of offices being exercised by persons holding under an authority apparently good, but which, on strict legal examination, proves defective; whose acts, nevertheless, are, with some limitations, considered as valid. This authority is called colourable, and the officer in such cases is said to be an officer de facto; which intends an intermediate state between an exercise strictly lawful and one without such colour of right. Mr. Smith does not appear to me to have holden the office of sheriff on the 3d of May under such colour or pretence of right. The term of his office had expired, and he had formally expressed his determination not to accept a reappointment; after the expiration of the year he accepted, and even two days before the receipt of the ballots, openly exercised an office incompatible with that of sheriff; and it is to be inferred, from the tenour of the affidavits, that he then knew of the appointment of Mr. Gilbert. The assumption of this authority by Mr. Smith does not even appear to have been produced by any urgent public necessity or imminent public inconvenience. Mr. Gilbert was qualified in season to have discharged the duty, and, for aught that is shown, his attendance, if really desired, might have been procured still earlier.