"These votes were not canvassed for the following reasons:—
"1. The committee found themselves bound, by their oath and by the directions of the law before mentioned, to canvass only the votes contained in the boxes which may have been delivered into the secretary's office by the sheriffs of the several counties. It appeared to them absurd to suppose this duty should be so expressly enjoined, and that they should nevertheless be prohibited from inquiring whether the boxes were or were not delivered by such officers; or that they should be restrained from ascertaining a fact, without the knowledge of which it was impossible that they could discharge the duty with certainty to the public or with confidence to themselves. They could not persuade themselves that they were, under that law and that oath, compelled to canvass and estimate votes, however fraudulently obtained, which should be delivered into the secretary's office by any person styling himself sheriff, though it should at the same time be evident to them that he was not the sheriff. If such was to be their conduct, a provision intended as a security against impositions would be an engine to promote them. They conceived, therefore, that the objection to an inquiry so important, and in a case where the question was raised and the inquiry imposed upon them by the suggestions of the secretary, must have arisen from gross misrepresentation or willful error.
"Upon investigating the right of the said Richard R. Smith to exercise that office, the facts appeared as herein-before stated.
"2. The constitution requires that sheriffs shall be annually appointed; which, to our apprehension, implies that no person shall exercise the office by virtue of any other than an annual appointment. And should it even be admitted that the council may, at their pleasure, remove a sheriff within the year, yet we do not see on what ground it can be denied that the duration of the office is limited to one year, unless a new appointment should take place. It would otherwise be true that the council could indirectly, or by a criminal omission, accomplish what is not within their direct or legal authority. It will be readily admitted that an appointment and commission for three years would be void; and surely the pretence of one thus claiming should be preferred to a usurpation without even such appearance of right, and against the known right of another. To assert, therefore, that 'by the constitution the sheriff, whatever may be the form of his commission, must hold his office during the pleasure of the Council of Appointment; and that, by the law of the land, he must continue therein until another is appointed and has taken upon himself the office,' is an assertion accompanied with no proof or reason, and is repugnant to the letter and spirit of the constitution, which is eminently the law of the land. The practice which has prevailed since the revolution, as far as hath come to our knowledge, does not warrant the position; neither could mere practice, if such had prevailed, justify the adoption of a principle contrary to the obvious meaning of the constitution. Upon the present occasion we have not canvassed the votes of any county which were not returned by a sheriff holding his office under an appointment unexpired. The sheriffs of Kings, Orange, and Washington had all been reappointed within the present year, which satisfied the words of the constitution, and was the known and avowed reason which influenced the committee to estimate the ballots of those counties. The doctrine concerning the constitutional pleasure of the council in the appointment of the office of sheriffs had not then been invented.
"3. But even admitting the visionary idea that the office of sheriff (whose duration is limited by the constitution) can nevertheless be holden during the pleasure of the Council of Appointment, yet that appears to have been determined by the letter of the appointment and commission, by the appointment of Benjamin Gilbert, by the declaration of Richard R. Smith, and by his acceptance and exercise of another office, which is, by the constitution, declared to be incompatible with the office of sheriff.
"It was evident, therefore, that Richard R. Smith had no authority by appointment, by commission, by the constitution, or by any law, to hold or exercise the office of sheriff on the third of May.
"4. As Richard R. Smith was not legally or constitutionally sheriff on the third of May, neither, under the circumstances of the case, can he be said to have been sheriff in fact, so as to render his acts valid in contemplation of law: the assumption of power by Mr. Smith appears to have been warranted by no pretence or colour of right. The time limited for the duration of his office had expired by the express tenure of his commission and appointment, and he had formally declared his determination not to accept a reappointment. He had, two days previous to his receiving the ballots, openly exercised an office incompatible with that of sheriff; then declared that he had resigned the office of sheriff, and that Benjamin Gilbert was appointed in his place; and by an affidavit which was produced to the committee, it appeared that, upon the day upon which he had put up the ballots in the house of the said William Cooper, he, the said Richard R. Smith, declared that he had resigned the office of sheriff. The business might with equal care and certainty have been executed by Benjamin Gilbert. The single act of receiving ballots could of itself continue no man a sheriff—least of all a man disavowing that office, and then in the exercise of another. It was foreign to the duty of the committee to provide against evils which may possibly arise from casual vacancies in the office of sheriff by death and otherwise. Vacancies will sometimes unavoidably happen, without further legislative provision.
"There is not, therefore, in our opinion, any application to the subject, or force in the objection, 'that if Richard R. Smith was not sheriff, the county was without a sheriff;' neither is the position true in fact, for it appears that the county was not then without a sheriff. At the time the ballots were received, it was well known that Benjamin Gilbert was appointed sheriff, and that his commission was in the hands of William Cooper, in whose store Richard R. Smith put up the ballots. It is also to be fairly inferred that, had proper measures been taken to give notice to Mr. Gilbert, he would forthwith have qualified and undertaken the execution of the office. It cannot, therefore, consistent with truth or candour, be asserted that there was the remotest probability that 'mischiefs' could in any parallel case ensue from the principles adopted by the committee.
"It did not seem possible, therefore, by any principle of law, by any latitude of construction, to canvass and estimate the ballots contained in the box thus circumstanced.
"But, had the question been doubtful, it was attended by other circumstances, which would have determined the committee against canvassing those ballots.